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Making Sense of "Moral Rights" in IntellectualPropertyBrian A. LeeBrooklyn Law School, brian.lee@brooklaw.edu

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Recommended Citation84 Temp. L. Rev. 71 (2011-2012)

MAKING SENSE OF "MORAL RIGHTS" ININTELLECTUAL PROPERTY

Brian Angelo Lee*

This Article offers a novel account of the theoretical foundations of American

"Moral Rights" laws in intellectual property, laws which give artists the right toprevent purchasers of their works from altering those works, even after the purchase is

complete, if the artist disapproves of the alterations. Conventional accounts of these

laws' foundations rely either on economic incentives or on creators' "rights of

personality. " Examination of the central provisions of both federal and state moralrights laws, however, reveals the implausibility of both those accounts: the centralprovisions that the laws actually contain are incompatible with what we would expectto find if the traditional accounts were correct, and no mere variant of the traditional

accounts is likely to be plausible. Instead, these laws are best understood as resting

upon a moral duty of respect for artworks' creative excellence. Such an account both

flows naturally from broader American cultural practices concerning respect for

excellence and succeeds, where the other accounts failed, in providing a coherent

explanation for the central provisions that we in fact observe in American moral rights

laws. The Article further explains why these moral rights protections are given only tovisual artists and not to creators of other works, and it shows how this analysis can

inform debates about expanding creators' legal rights of attribution. The Article also

draws upon the considerable similarities between visual art and other products ofhuman creativity to highlight the broader challenge that its analysis poses to the

traditional, purely economic, understanding of the foundations ofAmerican intellectual

property law more generally.

TABLE OF CONTENTS

1. INTRO DUCTION ............................................................................................... 73

II. STATUTORY LANDSCAPE ................................................................................ 79A. Contours of the Statutory Rights ........................................................... 80

1. Alteration or Display of Alteration ............................................... 80

2. D estruction ................................................................................... . . 8 1

3. "Recognized Stature .................................................................... 81

4 . A lienab ility ................................................................................... . . 8 1

Assistant Professor of Law, Brooklyn Law School. J.D., Yale Law School. Ph.D., Princeton University. B.A.,

University of California, Berkeley. My thanks to Henry E. Smith, Gregory Alexander, Christopher Serkin,

Rebecca Tushnet, Andrei Marmor, Scott J. Shapiro, Rebecca Kysar, Jane Yakowitz, Jason Mazzone,

participants in the Intellectual Property Scholars Conference, and to participants in workshops at Brooklyn

Law School and the University of Southern California Gould School of Law for their helpful comments on

earlier drafts of this Article. Any errors are my own. The Brooklyn Law School Dean's Summer Research

Stipend provided financial support for this project.

72 TEMPLELAWREVIEW [Vol. 84

5. Termination ................................................................................... 81

B. Overview of Common Features ............................................................ 82

III. THE INADEQUACY OF ECONOMIC REDUCTION ................................................ 82A. General Objections to Reputational Externalities Theories ................. 84

1. Symmetry ....................................................................................... 84

2. Value of Protecting Reputation ...................................................... 85

3. Alteration as M arket-Value Enhancing .......................................... 86

B. How Good a Fit? .................................................................................. 87

1. W aivability .................................................................................... 87

2. Transferability ................................................................................ 88

3. Destruction ..................................................................................... 89

4. Term ination ................................................................................... 90

C. Inherent Limitations of Economics-Based Accounts ............................ 90

IV. FAILURE OF "PERSONALITY" THEORIES ............................................................. 91V. EXPRESSIVISM, PRESERVATIONISM, REPUTATION .......................................... 96

A. The Expressivist Argument ................................................................... 96

B. The Preservationist Argument ............................................................. 98

C. The Reputation Theory ............................................................................ 100VI. AN ALTERNATIVE FRAMEWORK: RESPECT FOR ARTWORKS' CREATIVE

EXCELLENCE .................................................................................................... 101

A. Respect for Excellence in a Broader Context .......................................... 101

B. Respect for Excellence in American Moral Rights Laws ......................... 107

1. W aiver and Transfer ......................................................................... 107

2. Destruction ........................................................................................ 108

3. Public Display, Reputation, and Term ination ................................... 108

4. Termination ....................................................................................... 109

5. Varying Lengths of Postmortem Restriction ..................................... 111VII. WHY LIMITED TO VISUAL ARTS: UNAVAILABILITY OF IDENTICAL

DUPLICATES AFTER ALTERATION ..................................................................... 112

VIII. CONCLUSION .................................................................................................... 116

2011] MAKING SENSE OF "MORAL RIGHTS" IN INTELLECTUAL PROPERTY 73

I. INTRODUCTION

American intellectual property law, the conventional story tells us, essentiallysprings from economic concerns about encouraging the production and disseminationof valuable non-tangible goods.' By contrast, European intellectual property laws aresaid to rest on radically different foundations-concerns not merely for economicincentives but also for preserving the dignity and personhood of creators by providingthem with certain "Moral Rights." The most distinctive of these rights from anAmerican perspective, and the principal focus of debates about Moral Rights inAmerican law, is the "right of integrity," which gives artists the legal right to preventpurchasers of their works (and subsequent owners) from altering those purchasedworks, even after the purchase is complete, if the artist disapproves of the alteration.2

Although the traditional account is therefore one of radical distinction between theAmerican and European approaches, 3 in the United States, the Visual Artists' Rights

1. In simplified form, the animating principle behind American intellectual property law is said to bepreservation of incentives to produce and disseminate products of human ingenuity. Since there exist nonatural obstacles to duplicating ideas and expressions after they have been released into the world, intellectualproperty law supplies a legal obstacle, thereby preserving creators' ability to profit from their works and theresulting incentive to produce more of such works. At the same time, the account continues, the grant ofintellectual property rights is limited by the need to preserve the rest of society's ability eventually to add tothe store of social wealth by making unfettered use of these works. See, e.g., Sari Louis Feraud Int'l v.Viewfinder Inc., 406 F. Supp. 2d 274, 281 (S.D.N.Y. 2005) ("Copyright and trademark law are not matters ofstrong moral principle. Intellectual property regimes are economic legislation based on policy decisions thatassign rights based on assessments of what legal rules will produce the greatest economic good for society as awhole."), vacated and remanded, 489 F.3d 474 (2d Cir. 2007); JOHN HENRY MERRYMAN ET AL., LAW,

ETHICS AND THE VISUAL ARTS 232 (3d ed. 1998) ("In US law, the basic position is that copyright is

conferred on creators by the Constitution and statute for public ends: 'to promote the progress of science andthe useful arts.' The civil law approach emphasizes protection of the inherent rights of the author; the USsystem encourages industry."); ROGER E. SCHECHTER & JOHN R. THOMAS, INTELLECTUAL PROPERTY:

THE LAW OF COPYRIGHTS, PATENTS AND TRADEMARKS 138 (2003) ("The U.S. copyright law traditionally

has had a utilitarian focus. Protection of authors has not been seen as the ultimate purpose of copyright, butrather as a means to achieve the broader social goal of promoting expression."). The United StatesConstitution's grant of power to Congress to regulate intellectual property can be read as reflecting thiseconomics-centered approach, provided that one has a purely economic conception of "progress": "TheCongress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limitedTimes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. CONST.art. I, § 8, cl. 8.

2. SCHECHTER & THOMAS, supra note l, at 138-39.

3. See, e.g., PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL

JUKEBOX 137-38 (rev. ed. 2003) ("Commentators regularly cite the doctrine of an author's moral right, and itsrejection in the United States, as evidence of a profound and pervasive division separating two cultures ofcopyright .... The European culture of copyright places authors at its center, giving them as a matter ofnatural right control over every use of their works that may affect their interests .... By contrast, the Americanculture of copyright centers on a hard, utilitarian calculus that balances the needs of copyright producersagainst the needs of copyright consumers, a calculus that leaves authors at the margins of its equation.");Henry Hansmann & Marina Santilli, Authors' & Artists' Moral Rights: A Comparative Legal and Economic

Analysis, 26 J. LEGAL STUD. 95, 102 (1997) ("It is frequently said that the interests protected by moral rightsdoctrine, and particularly by the right of integrity, are 'personality' interests that are fundamentally differentfrom the 'economic' or 'commercial' interests that are protected by the copyright, trademark, and right ofpublicity doctrines that, until recently, were the principal bodies of law governing the interests of artists in theUnited States."); Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and

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Act of 1990 (VARA),4 and several state statutes that preceded VARA, give creators ofcertain types of visual art Moral Rights protections of a sort traditionally viewed asdistinctively "European." Some commentators reacted to VARA's passage byanathematizing it. Stephen Carter, for example, inveighed against "such elitist anddespotic doctrines as 'moral right,' lately incorporated by the Congress," 5 and GeorgeC. Smith denounced VARA as an "exotic legal import" that "represents anunprecedented incursion on property rights as Americans know them."6 However, suchattempts simply to stigmatize VARA as a dangerous alien incursion did not prevail, aresult unsurprising in light of the number of United States jurisdictions that haveenacted Moral Rights statutes. By expanding our gaze to encompass state law, and notjust VARA, we see that such statutes are far too common to be dismissed as "un-American" aberrations.

7

Creators, 53 HARV. L. REV. 554, 557 (1940) ("Busy with the economic exploitation of her vast naturalwealth, America has, perhaps, neglected the arts; in any event American legal doctrine has done so, and the

paucity of material outside the copyright law on the rights of creators forms a vivid contrast to continentaljurisprudence.").

4. 17 U.S.C. § 106A (2006).

5. Stephen L. Carter, Owning What Doesn't Exist, 13 HARV. J.L. & PUB. POL'Y 99, 100 (1990). Carterelaborated his charge:

The idea that the government should enable the artist to forbid the owner's acts, or, as some suggest,should make the artist's right to forbid inalienable, is worse than uncultured. It is classic special-interest legislation, regulating the ability of an owner to do with her property as she likes, not somuch for the benefit of artists or filmmakers as such, but for the benefit of a minority who will feelbetter knowing that the owner is not allowed to act in an uncultured way.

Id. at 101.

6. George C. Smith, Artistic License Takes on a New Meaning, LEGAL TIMES, Dec. 17, 1990, at 23; seealso Eric E. Bensen, Note, The Visual Artists' Rights Act of 1990: Why Moral Rights Cannot Be Protected

Under the United States Constitution, 24 HOFSTRA L. REV. 1127, 1130 (1996) (claiming that VARA isunconstitutional).

7. A few commentators have taken the opposite approach and tried to dismiss VARA as a largelyinconsequential statute enacted merely for the limited purpose of bringing American intellectual property lawmore fully into compliance with the Berne Convention, which, at the time of VARA's enactment, the UnitedStates had recently joined. See, e.g., SCHECHTER & THOMAS, supra note 1, at 139. ("Doubts neverthelesspersisted over whether the United States had fully met its Bere Convention obligations. Congress respondedby enacting the Visual Artists Rights Act of 1990 .... "); Note, Visual Artists' Rights in a Digital Age, 107HARV. L. REV. 1977, 1985 (1994) (asserting that Congress passed VARA in order to be in compliance withthe Berne Convention). However, state law again shows the implausibility of this dismissal, since several stateMoral Rights statutes had preceded VARA's enactment. E.g., 1979 Cal. Stat. 1501 (codified as amended atCAL. CIv. CODE § 987). It is unlikely, to say the least, that the motivation for these various state statutes was tobring the United States into closer conformity with an international agreement to which the United States wasnot even a party when the states enacted those statutes. Moreover, this suggestion faces the addedembarrassment that even VARA itself does not fully comply with Beme's requirements. See LEONARD D.DUBOFF & CHRISTY 0. KING, ART LAW IN A NUTSHELL 213 (2006) (asserting that VARA's omission of"the right to anonymity or pseudonymity[] are conspicuous departures from a growing worldwide compliancewith Berne"); Cambra E. Stem, A Matter of Life or Death: The Visual Artists Rights Act and the Problem of

Postmortem Moral Rights, 51 UCLA L. REV. 849, 871, 876-77 (2004) ("While VARA created moral rightsand acknowledged their importance during the artist's life, in a state without moral rights, there is noprotection from a moral rights statute once the artist is dead, despite Berne's mandate for postmortem rightsand the existence of postmortem rights in some parts of the country.").

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2011] MAKING SENSE OF "MORAL RIGHTS" IN INTELLECTUAL PROPERTY 75

Indeed, these statutes continue to be a wellspring of litigation by visual artists.

Recent prominent examples include a dispute over Yahoo's re-landscaping of a parking

lot in a way that altered the context of an outdoor artwork that Yahoo had purchased for

its corporate headquarters; 8 a dispute over the Chicago Park District's alteration of a

field of wildflowers that had been installed as part of a commissioned work twenty

years earlier;9 and a $1.1 million settlement in an artist's lawsuit over the destruction of

the Los Angeles mural "Ed Ruscha Monument.'"

Likewise, Moral Rights laws continue to be a vibrant source of scholarly

controversy. Some recent commentators have advocated expanding Moral Rightsprotections in American law. II Others chafe at the restrictions that Moral Rights lawsimpose on creativity and advocate the scaling back of those Moral Rights protections

that already exist.12

These debates have been shaped by a framework of conventional assumptions

about the nature and purpose of American Moral Rights laws. This Article begins byarguing that careful examination of these laws' principal provisions reveals that those

assumptions are mistaken: the provisions that we actually observe in these laws are

incompatible with the provisions that would exist if any of the traditional accounts ofthese laws were correct. The necessary consequence is a rejection of both purely

economic-based accounts of American Moral Rights law and of alternative accounts

based on rights of personality.

8. Kelly Crow, It's Yahoo's Lawn, but this Artist Says Keep Off the Grass, WALL ST. J., Oct. 1, 2007, at

Al.

9. Andrew Herrmann, Flower Power, To a Point, CHI. SUN-TIMES, Oct. 1, 2008, (News), at 9; Martha

Lufkin, Artist Chapman Kelley Launches Federal Appeal Over Chicago Wildflower Work, ART NEWSPAPER,

June 4, 2009, http://www.theartnewspaper.com/articles/Artist-Chapman-Kelley-launches-federal-appeal-over-

Chicago-Wildflower-work/l 7459.

10. Diane Haithman, New Coat is Costly, L.A. TIMES, May 1, 2008, (Calendar), at I (internal quotation

marks omitted).

11. See, e.g., Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law,

41 HOuS. L. REV. 263, 301-06 (2004) (arguing for a modification of copyright law to create a federal right of

attribution); llhyung Lee, Toward an American Moral Rights in Copyright, 58 WASH. & LEE L. REV. 795, 799

(2001) (arguing, from dignity-based concerns, for an expansion of authors' Moral Rights protections); Neil

Netanel, Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative

Evaluation, 24 RUTGERS L.J. 347, 353-54 (1993) (arguing for making certain copyright protections akin to

Moral Rights protections by being inalienable); Lucille M. Ponte, Preserving Creativity from Endless Digital

Exploitation: Has the Time Come for the New Concept of Copyright Dilution?, 15 B.U. J. SCI. & TECH. L. 34,

41 (2009) (proposing that American law embrace a concept of "copyright dilution" as a means of providing

Moral Rights protections); see also ROBERTA ROSENTHAL KWALL, THE SOUL OF CREATIVITY: FORGING A

MORAL RIGHTS LAW FOR THE UNITED STATES, xviii (2010) (arguing for supplementing current Moral Rights

law to "incorporate authorship morality").

12. For example, see Amy M. Adler's recent criticism in Against Moral Rights, 97 CALIF. L. REV. 263,

265 (2009). Adler starts from an assumption that the purpose of these Moral Rights statutes is to "protect art,"

and then argues that the nature of contemporary art has fundamentally changed in ways that make these

statutes obsolete. Id at 265. Whether Adler is correct that current Moral Rights statutes are harmful is a

question that lies beyond the scope of this Article. However, if this Article's account of the analytic

foundations of those statutes is correct, then we must reject Adler's initial assumption. Nevertheless, it remains

an open question whether a conclusion similar to Adler's might be possible within the general analytic

framework that this Article presents.

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Making sense of American Moral Rights law, I argue, requires a theory based

upon non-economic moral principles-specifically, a duty of respect for artworks'creative excellence. This Article develops such a theory and shows that it not onlyflows naturally from broader American cultural practices concerning respect forexcellence but also succeeds where existing theories have failed, by providing acoherent explanation for the central provisions that we in fact observe in AmericanMoral Rights law. This account also explains why these Moral Rights protections areoffered only to visual artists and not to creators of other works. The explanation, whichinvolves the availability of perfectly identical duplicates of original artworks,

additionally casts further light on debates about expanding creators' legal rights to havetheir names attached to their works (i.e., "rights of attribution").

The implications of this Article's analysis extend beyond the law governing visualart. Because visual artistry is just one form of creativity, similar in kind to many other

forms, the essential role of non-economic moral considerations in explaining the law ofvisual art strongly suggests that similar considerations are important for fullyunderstanding other areas of the American intellectual property system as well. Theunique success of this theory thus challenges the conventional assumption thatAmerican intellectual property law arises within a purely economics-based analyticframework, and reveals an overlooked non-economic moral dimension in American

intellectual property law.

A few initial remarks about this Article's analytical strategy might be useful. ThisArticle aims to identify the analytical underpinnings of American Moral Rights law by

discerning the principle or combination of principles that best makes sense of theprovisions we actually observe in these laws, not least by being consistent with themost common and central of these provisions.13 Readers with a philosophical bent may

13. This reference to consistency may call to mind theories of statutory interpretation in which coherence

plays a pivotal role, in some cases a coherence that is broad in scope and encompasses wide areas of the law,

various policy concerns, and fundamental principles of law, morality, or political order. Perhaps the most

prominent contemporary example is Ronald Dworkin's theory of "law as integrity." See, e.g., RONALD

DwoRKIN, LAW'S EMPIRE 216-75 (1986). However, such theories of how judges ought to interpret and apply

the law employ coherence in a context significantly different from that of the present inquiry, since judges, by

virtue of their institutional role, must operate within constraints which do not limit non-governmental analysis.

For example, the statutes and precedential case law of a state judge's own jurisdiction are binding upon the

judge, although similar materials from a neighboring state are, at most, merely persuasive authority. Non-

governmental commentators, by contrast, are under no such limitation, and thus are free to analyze and

evaluate each state's laws on an equal footing and without any requirements of deference to the political

branches or to academic precedent. Moreover, the question of what underlying principles provide the most

accurate and intellectually fruitful understanding of American Moral Rights law is inherently distinct from the

issue of how courts ought to interpret and apply that law when bringing the coercive power of the state to bear.

Although the answer to the former might inform the answer to the latter, the two questions are separate, and it

is the former question that this Article shall address.

Note that although American Moral Rights law is largely a product of statute, with only very limited case

law, this Article is not an exercise in legislative history. The extent to which legislative histories are

informative even when available is famously controversial, and this Article is agnostic about what "actually"

motivated each of the various drafters, sponsors, and enactors of these laws-or whether a single determinate

answer to that question even exists. See, e.g., WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY

INTERPRETATION 207-38 (1994) (recounting the history of this controversy and defending judicial use of

legislative history); ANTONIN SCALIA, A MATTER OF INTERPRETATION 29-37 (1997) (criticizing the use of

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notice the similarity between this approach and what philosophers term "inference to

the best explanation," which loosely can be described as a practice of concluding that

whatever principle best explains a given set of observed phenomena is to be deemed

descriptively "correct."' 4 In our case, the observed phenomena are the provisions of the

various Moral Rights laws that have been enacted in American jurisdictions, and the

best explanatory principle (this Article argues) is a concern that there be legal

recognition of a moral duty of respect for artworks' creative excellence.

Of course the "best" explanatory principle might not be a "perfect" explanatory

principle, because no such perfect principle may exist. In fact, given the variety of

influences that shape lawmaking, the existence of a principle that perfectly explained

every feature of an area of law would be quite surprising.15 Thus, in the discussion that

follows, the question will not be whether each candidate theory can satisfactorily

explain every feature of American Moral Rights laws, but, rather, whether it can

explain those laws' central features, and whether some other theory can do so more

successfully.16

legislative history in federal adjudication); Stephen Breyer, On the Uses of Legislative History in Interpreting

Statutes, 65 S. CAL. L. REV. 845, 847 (1992) (defending the use of legislative history when statutory languageis unclear). For purposes of our inquiry, it is immaterial whether the individuals who directly created theselaws happened to differ in their motivations or lacked a conscious and well-developed theoretical motivationfor their legislative act. Thus, this Article neither takes nor assumes any position on the controversial questionof the existence and relevance of "legislative intent" in statutory interpretation. For a succinct criticism of theuse of such "intent," see Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 870 (1930) ("Alegislature certainly has no intention whatever in connection with words which some two or three men drafted,which a considerable number rejected, and in regard to which many of the approving majority might have had,and often demonstrably did have, different ideas and beliefs."). For an additional criticism of "intentionalism,"see ESKRIDGE, supra, at 14-25. For a recent defense of referring to "legislative intent," see Lawrence M.Solan, Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation, 93

GEo. L.J. 427, 428 (2005) ("We routinely attribute intent to a group of people based on the intent of a subset ofthat group, provided that there is agreement in advance about what role the subgroup will play. The legislatureis a prototypical example of the kind of group to which this process applies most naturally.").

14. The phrase "inference to the best explanation" was introduced to the philosophical literature byGilbert H. Harman, The Inference to the Best Explanation, 74 PHIL. REV. 88 (1965). Note, however, that thetypical philosophical use of the term "inference to the best explanation" is in the context of debates about thenature and reliability of scientific reasoning. Although legal reasoning and scientific reasoning may have somecommon features and share some common difficulties, this Article does not seek to offer a "scientific" accountof Moral Rights law. For a succinct overview of philosophical debates about inference to the best explanation,see Peter Lipton, Inference to the Best Explanation, in A COMPANION TO THE PHILOSOPHY OF SCIENCE 184(W.H. Newton-Smith ed., 2000).

15. Discussion of such influences is common in the literature on the use of legislative history andlegislative intent in statutory interpretation. See supra note 13 for a discussion of the varying perspectivesregarding the roles of legislative history and intent.

16. Although this Article ultimately rejects economic accounts of these Moral Rights laws, its analyticalapproach bears some similarity to an approach familiar from some positive law and economics scholarship.See, e.g., ROBERT COOTER & THOMAS ULEN, LAW & ECONOMICS 195, 235-36, 293-94 (4th ed. 2004)(asserting that specific economic considerations lie behind various contract law doctrines); WERNER Z.HIRSCH, LAW & ECONOMICS: AN INTRODUCTORY ANALYSIS 17 (3d ed. 1999) (asserting that "[f]rom theeconomist's point of view, a major role of contract law and property law is to reduce transaction costs");RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 26 (6th ed. 2003) (describing the "economic theory oflaw" as trying "to explain as many legal phenomena as possible through the use of economics"); GuidoCalabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499, 514-17 (1961)

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Whatever principle best makes sense of these statutes, it is a further questionwhether the law ought to pay heed to such a principle, or whether these particularstatutes do the best possible job of reflecting such a principle. Thus, even if one isconvinced by this Article's argument that the best way to make sense of these statutesis in terms of a particular duty of respect, one is free to question whether these specificlaws do a good job of giving force to that duty, and whether the law ought to give forceto that duty at all. Indeed, opening the door to such questions and laying the necessaryanalytic foundation for beginning to address them is one of this Article's purposes.

As a result, the ultimate implications of this Article's argument will depend in partupon each reader's prior normative commitments. For readers who approach this issuealready firmly committed to the proposition that intellectual property law shouldprimarily promote efficiency, or should protect the "personalities" of artists, thisArticle will raise the question of whether current Moral Rights laws adequately reflectthose goals and will provide a strong reason to think that they do not. For readersalready committed to thinking that legal recognition of moral duties of respect isinherently objectionable, this Article will reveal that they have reason to seek repeal ormodification of these laws. For other readers-perhaps a majority-who approach thisissue without such pre-commitments, this Article will provide a clearer and moreaccurate understanding of the analytical principle that connects American Moral Rightslaws, will lay the foundation for normative inquiry about that principle both in theMoral Rights context and more broadly in American intellectual property law, willprovide a framework for evaluating arguments for and against the expansion orcurtailment of Moral Rights protections, and will challenge conventional assumptionsabout the exclusively-economic foundations of American intellectual property law.

The discussion proceeds as follows: Part I sets the stage by surveying the relevantprovisions of the various state and federal Moral Rights statutes. Part II criticallyexamines the attempt to domesticate these Moral Rights laws by accounting for themwithin a law-and-economics framework, and argues that the attempt fails. Part IIIfocuses on the major rival to the economics-based account.-"European" accountsbased on an asserted connection between artworks and the "personality" of the artist-and concludes that it too is unsuccessful. Part IV assesses expressivist, preservationist,and reputation-based accounts. Once again, each of the aforementioned accountsproves inadequate to explain the observed features of these Moral Rights statutes.

Part V, therefore, argues that a different sort of legal and moral framework is atwork in American Moral Rights law, a non-economic framework based on moral dutiesof respect for artworks' creative excellence. Part VI then develops an explanation,based on the possibility of perfectly identical duplicates of a work, for why the specific

(offering an economic account of certain features of tort law). There is, however, some debate over the extent

to which such analyses are generally representative of the main trend in law-and-economics scholarship,especially in recent years. For example, Richard Craswell has asserted that "descriptive" analysis is largelyperipheral in economic analyses of the law. Richard Craswell, In That Case, What Is the Question? Economicsand the Demands of Contract Theory, 112 YALE L.J. 903, 904-07 (2003); see also Ian Ayres, Valuing ModernContract Scholarship, 112 YALE L.J. 881, 881-82 (2003) (denying that economic analyses of law have sought"to predict the content of current legal rules"). Eric Posner, by contrast, takes such accounts to be much moretypical of economic analyses of law. Eric A. Posner, Economic Analysis of Contract Law After Three Decades:

Success or Failure?, 112 YALE L.J. 829, 831 n.2, 832-34 (2003).

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rights that these statutes provide are granted only to visual artists and not to creators ofother works. Part VII also shows how this explanation can illuminate debates about

expanding creators' legal rights of attribution. The Article concludes by drawing uponthe considerable similarity between visual art and other products of human creativity toindicate this account's broader implications for the role of non-economic moralconsiderations in our intellectual property regime more generally. 17

II. STATUTORY LANDSCAPE

American Moral Rights law is largely a product of statute, with only limited caselaw. This Part maps out that statutory landscape, so that we can have a clear idea of thelaws that the various competing accounts seek to explain.

The most prominent American Moral Rights statute is federal, the Visual Artists

Rights Act (VARA), which provides that the "author of a work of visual art" has a right

of integrity, which, subject to certain limitations, allows that artist to prevent any

intentional alteration to that work "which would be prejudicial" to the artist's "honor or

reputation," and further decrees that "any intentional distortion, mutilation, or

modification of that work is a violation of that right."'18 VARA also empowers thoseartists to prevent "any destruction of a work of recognized stature" and provides that"any intentional or grossly negligent destruction of that work is a violation" of thoseartists' rights.' 9 VARA prohibits transfer of these rights, but does allow artists to waivethem. 20 The rights expire when the artist dies (technically, at the end of the year inwhich the artist dies).21

Eleven states also have Moral Rights statutes providing a right of integrity forvisual art, several of which preceded VARA. These state statutes-from California, 22

Connecticut, 23 Louisiana, 24 Maine, 25 Massachusetts, 26 Nevada, 27 New Jersey,28 New

17. One note about nomenclature: Philosophers sometimes talk about rights provided by morality. This

notion of "moral rights" may be close to the ordinary conversational meaning of "moral rights," but we should

not be quick to assume that it is the same notion that lies behind the legal rights that we shall be discussing

here. In our context, "Moral Rights" is a term of art, and determining whether it makes sense to think of them

primarily in terms of moral requirements is one of the aims of this Article. Therefore, to avoid confusion, I

shall follow Charles Beitz in using "Moral Rights," with initial capital letters, to refer to these legalregulations, and "moral rights," in all lowercase, to refer to the non-legal notion. See Charles R. Beitz, The

Moral Rights of Creators ofArtistic & Literary Works, 13 J. POL. PHIL. 330, 330 n.5 (2005).

18. 17 U.S.C. § 106A(a)(3)(A) (2006).

19. Id. § 106A(a)(3)(B).

20. Id. § 106A(e)(1).

21. Id. § 106A(d)(l), (4). (Note that slightly different provisions apply to works that were created beforeVARA's enactment.) Presumably, considerations of administrative convenience shaped this provision, which

obviates the need for keeping track of the precise date upon which an artist dies, a date that may not even be

known for certain. Knowing simply the year of death is sufficient for determining when the rights ceased to bein force. But see Stem, supra note 7, at 874 (suggesting that "[i]t is unclear why this [provision] would be the

case unless VARA was intended to allow heirs to bring an action after the artist's death").

22. CAL. CIV. CODE § 987 (West 2011).

23. CONN. GEN. STAT. ANN. §§ 42-116s to -1 16t (West 2011).

24. LA. REV. STAT. ANN. §§ 51:2151-2156 (2011).

25. ME. REV. STAT. ANN. tit. 27, § 303 (2011).

26. MASS. GEN. LAWS ANN. ch. 231, § 85S (West 2011).

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Mexico,29 New York,30 Pennsylvania, 31 and Rhode lsland 32-typically share manyprovisions and even specific language. 33 But there is variation in their specification of

the sorts of alterations that artists may prohibit, the sorts of work that will receiveprotection, the rules governing transfer of the rights, and the conditions under whichthe rights terminate.

A. Contours of the Statutory Rights

1. Alteration or Display of Alteration

The state statutes provide two distinct sorts of integrity right. Some states give a

right similar to VARA's, allowing the artist to prohibit any alteration to a sold work. 34

Other state statutes provide only a more limited right against public display of artworks

that have been altered in a way that might reasonably be expected to harm the artist's

reputation.35 Statutes in New Mexico 36 and Rhode Island37 are similar to the latter in

this respect, but broader in giving the artist a right against public display of altered

artwork irrespective of whether the display reasonably threatens to harm the artist's

reputation. Louisiana's statute also adds an idiosyncratic provision prohibiting public

display without the artist's consent, even of an unaltered artwork, if such display would

be "reasonably likely" to damage the artist's reputation.38

27. NEV. REV. STAT. ANN. §§ 597.720-760 (West 2009).

28. N.J. STAT. ANN. §§ 2A:24A-l to -8 (West 2011).

29. N.M. STAT. ANN. §§ 13-4B-1 to -3 (West 2011).

30. N.Y. ARTS & CULT. AFF. LAW § 14.03 (McKinney 2011). In an unreported decision, a federal

district court held that VARA's explicit provision for preempting state statutes that provide "equivalent" rights

applies to the New York statute. Bd. of Managers of Soho Int'l Arts Condo. v. City of New York, No. 01 Civ.

1226, 2003 WL 21403333, at *12, *15-16 (S.D.N.Y. June 17, 2003). Although the question of VARA

preemption is interesting in its own right, it is immaterial to the discussion in this Article. At issue here is how

we can analytically account for the provisions that these statutes contain, not whether the provisions

subsequently have been preempted by the enactment of equivalent VARA provisions.

31. 73 PA. CONS. STAT. ANN. §§ 2101-2110 (West 2011).

32. R.I. GEN. LAWS ANN. §§ 5-62-2 to-6 (West 2010).

33. Three other states have statutes regulating some aspects of visual artists' rights, but without

providing a general right of integrity. Illinois's statute governs the relationship between artists and art dealers.

815 ILL. COMP. STAT. ANN. 320/1-8 (West 2011). South Dakota's statute does provide artists a right of

integrity, but only against the state for art purchased by the state. S.D. CODIFIED LAWS § 1-22-16 (2011).

Utah's statute applies only to art acquired in one particular state program and does not provide a standard right

of integrity. UTAH CODE ANN. § 9-6-409 (West 2011).

34. States providing this broad right include California, Connecticut, Massachusetts, and Pennsylvania.

CAL. CIV. CODE § 987(c) (West 2011); CONN. GEN. STAT. ANN. § 42-116t(a) (West 2011); MASS. GEN.

LAWS ANN. ch. 231, § 85S(c) (West 2011); 73 PA. CONS. STAT. ANN. § 2104(a).

35. States offering only this narrower right are Louisiana, Maine, Nevada, New Jersey, and New York.

LA. REV. STAT. ANN. § 51:2153 (2011); ME. REV. STAT. ANN. tit. 27, § 303(2) (2011); NEV. REV. STAT.

ANN. § 597.740(l) (West 2009); N.J. STAT. ANN. § 2A:24A-4 (West 2011); N.Y. ARTS & CULT. AFF.

LAW § 14.03(1).

36. NM. STAT. ANN. § 13-4B-3(A) (West 2011).

37. R.I. GEN. LAWS ANN. § 5-62-3.

38. LA. REV. STAT. ANN. § 51:2153(3).

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2. Destruction

VARA and the California, Massachusetts, and Pennsylvania statutes allow artiststo prohibit destruction of works of "recognized stature," but not of other works. 39 Theother statutes are silent about destruction; presumably that silence would be construedas permission.

3. "Recognized Stature"

Approximately half of the state statutes require that a work be of "recognizedquality" to receive any of the Moral Rights protections that those statutes grant.40

VARA, by contrast, makes an artwork's "recognized stature" a precondition only forprotection against destruction, but not for protection against alteration. 41 And there isno "stature" or "quality" restriction at all in the remaining state statutes. 42

4. Alienability

Like VARA, all of the state statutes make the right of integrity waivable, and mostat least implicitly prohibit transfer, since they grant standing to the artist alone to seekrelief under those statutes. There are only four exceptions: Maine, which grants a causeof action to the artist "or his personal representative;" 43 California, which added aprovision allowing public or private not-for-profit arts organizations to seek injunctions"to preserve or restore the integrity of a work of fine art" when threatened or damagedby acts prohibited by the state's Moral Rights statute; 44 and Massachusetts and NewMexico, which use identical language to grant standing to the artist "or any bona fideunion or other artists' organization authorized in writing by the artist for suchpurpose.'45 Massachusetts and New Mexico also give their state attorneys generalstanding to sue, after an artist's death, for injunctive relief on the artist's behalf withrespect to art placed on public view.46 No statute permits general transferability of theMoral Rights it grants.

5. Termination

Unlike VARA, none of the state statutes terminate the right of integrity upon theartist's death. Several states mimic pre-1998 copyright law by terminating the right on

39. 17 U.S.C. § 106A(a)(3)(B) (2006); CAL. CIV. CODE § 987(c); MASS. GEN. LAWS ANN. ch. 231,§ 85S(c); 73 PA. CONS. STAT. ANN. § 2104(a).

40. California, Louisiana, Massachusetts, New Mexico, and Pennsylvania all have a quality requirement.

CAL. CIV. CODE § 987(b)(2); LA. REV. STAT. ANN. § 51:2152(7); MASS. GEN. LAWS ANN. ch. 231,§ 85S(b); N.M. STAT. ANN. § 13-4B-2(B); 73 PA. CONS. STAT. ANN. § 2102.

41. 17 U.S.C. § 106A(a)(3)(B) (2006).

42. See supra notes 25-41 and accompanying text for a discussion of the state statutes that provide rights

of integrity.

43. ME. REV. STAT. ANN. tit. 27, § 303(5) (West 2011).

44. CAL. CIV. CODE § 989(b)-(c).

45. MASS. GEN. LAWS ANN. ch. 231, § 85S(e); N.M. STAT. ANN. § 13-4B-3(C).

46. MASS. GEN. LAWS ANN. ch. 231, § 85

S(g); N.M. STAT. ANN. § 13-4B-3(E).

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the fiftieth anniversary of the artist's death. 47 The other states make the right implicitly

perpetual by phrasing their grant of Moral Rights as a general prohibition againstcertain actions done without the artist's permission. Since artists cannot grantpermission from beyond the grave, these Moral Rights protections are effectively

perpetual.41

B. Overview of Common Features

Sorting through these statutory provisions, we can identify certain generalprovisions shared by VARA and many of the state statutes, provisions that any

successful account of the foundations of these Moral Rights laws will therefore need tobe able to explain:

1. the rights are non-transferable

2. the rights are waivable

3. destruction of an artwork is (usually) allowed even though alteration isprohibited

4. some or all protections apply only to works of sufficiently exalted quality(in roughly half of the statutes)

A successful account should also be able to accommodate the statutes' varied

specifications of when, if ever, the Moral Rights terminates after the artist dies.

With those requirements in mind, we can turn to examining the major attempts toprovide a coherent theoretical account of these Moral Rights laws.

III. THE INADEQUACY OF ECONOMIC REDUCTION

American Moral Rights statutes will not pose a challenge to the conventional,purely economic, account of American intellectual property law if a satisfactoryaccount of those statutes can be given based solely upon economic considerations.Providing such an account has been tried, most prominently in a thorough and rigorous

paper by Henry Hansmann and Marina Santilli, who acknowledge that non-economicconsiderations may have provided some motivation for these laws, but suggest that"much of the incentive for adopting moral rights legislation derives from other

considerations," 49 primarily externality concerns familiar in law-and-economicsanalyses. This Part explains why, in light of the logic of the economic argument and theactual provisions that we observe in Moral Rights statutes, any attempt at economicreduction of these statutes is unlikely to succeed.

We can begin by noting, with Hansmann and Santilli, that if granting artists a

right of integrity is in fact an economically "reasonable exception" to property law's

47. Those "death plus fifty" states are California, Connecticut, Massachusetts, New Mexico, and

Pennsylvania. CAL. CIV. CODE § 987(g)(1); CONN. GEN. STAT. ANN. § 42-116t(d)(1) (West 2011); MASS.

GEN. LAWS ANN. ch. 231, § 85S(g); N.M. STAT. ANN. § 13-4B-3(E); 73 PA. CONS. STAT. ANN. § 2107(1)

(West 2011).

48. Those "implicitly perpetual" states are Louisiana, Maine, Nevada, New Jersey, New York, and

Rhode Island. LA. REV. STAT. ANN. § 51:2153 (2011); ME. REV. STAT. ANN. tit. 27, § 303(2); NEV. REV.

STAT. ANN. § 597.740(1) (West 2011); N.J. STAT. ANN. § 2A:24A-4 (West 2011); N.Y. ARTS & CULT.

AFF. LAW § 14.03(1) (McKinney 2011); R.I. GEN. LAWS ANN. § 5-62-3 (West 2010).

49. Hansmann & Santilli, supra note 3, at 104.

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"general prohibition on servitudes in chattels," that must be because current owners

"can seriously affect the interests of the artists who created those works or of other

persons."50

We also can borrow Hansmann and Santilli's succinct enumeration of the three

relevant interests that current owners of an artwork can seriously affect: First is the

artist's own "[p]ecuniary [i]nterests" in the sales price that his or her future works

might bring. Because "each of an artist's works is an advertisement for all of the

others," harm that an owner does to one of an artist's works decreases market demand

for that artist's future work.5 1 The resulting decrease in the prices at which the artist

could sell future work would diminish both the artist's potential wealth and the artist's

incentives for producing new work. Second is the pecuniary interest of previous

purchasers of the artist's work. Diminishing the artist's reputation by altering one of

the artist's existing works lowers the price that collectors could get by reselling the

artist's other already completed works.52 Third is the public-at-large's non-pecuniary

interest in preserving works intact as "important elements in a community's culture" or

as "the embodiment of an idea. ' 53 Altering works necessarily sets back this interest.

Because a current owner who decided to alter a work in his or her possession

would personally bear only a small fraction of these costs-that is, because the

alteration would have few or no negative effects on the current owner, but could have

substantial negative externalities--owners might make such alterations more frequently

than is socially optimal. 54 Since concerns about externalities are a staple of economic

analyses of law, an economic explanation for Moral Rights laws might therefore seem

natural: giving artists the right to prevent post-sale alterations of their works promotes

efficiency by limiting undesirable externalities. 55 Thus, for example, VARA prohibits

50. Id. at 102. Hansmann and Santilli's claim about a general "prohibition on servitudes in chattels" issomewhat controversial. See Glen 0. Robinson, Personal Property Servitudes, 71 U. CHi. L. REV. 1449, 1454

(2004) (arguing that servitudes to personal property currently do exist, most notably in software licensingrestrictions, and that the law should be less averse to such restrictions).

51. Hansmann & Santilli, supra note 3, at 104-05. That an artist's reputation has an important effect onthe market value of the artist's work is built into Hansmann and Santilli's definition of the sort of fine "art" towhich they intend their account to apply. Id. at 108-09.

52. Id. at 105.53. Id. at 106.54. Id.

55. Hansmann and Santilli find confirmation for this third-party-extemalities account in the fact that thelaw extends the right of integrity only to artists, not inventors:

In support of the view that reputational externalities are an important justification for the right ofintegrity, it is noteworthy that, in contrast to artists, inventors are generally not granted the right ofintegrity-even though inventors are highly creative and are otherwise given property rights in theirinventions of a character similar to those given artists .. . .A plausible justification for thisdistinction between inventors and artists is that the marketability of an invention has littlerelationship to the personal identity of the inventor and, in particular, to the other items that theinventor has patented.

Id. at 110. This conclusion is too hasty, however, since plausible alternative explanations exist.The simplest is that the law cares primarily about reputational harm to the creators themselves, and the

creative acts characteristic of art and invention essentially differ: inventors aim to create instrumental value,but visual artists aim to create intrinsic value. Because usefulness is the aim of invention, inventors'reputations depend on upon their inventions' usefulness. Therefore, since alterations made by owners of an

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both reputation-harming alterations and the destruction of visual artworks that areculturally significant.

56

If we examine this line of reasoning more closely, however, its persuasivenessvanishes. There are several general concerns with the plausibility of any account, suchas Hansmann and Santilli's, based on reputational externalities, and several specificconcerns arise when we consider how well the account matches the principal featuresthat we actually observe in Moral Rights laws. Let us start by considering the generalconcerns.

A. General Objections to Reputational Externalities Theories

1. Symmetry

If a key aim of Moral Rights law really is to maximize the aggregate market valueof an artist's artworks by elevating the artist's reputation, thereby protecting thepecuniary interests of both the artist and owners of the artist's works, logical symmetrywould suggest that just as artists are permitted to prevent alterations that owners wouldlike, so too they should be permitted to make changes to their own artworks even afterselling them, whether or not the owners approved, provided only that the changesincrease the value of the artist's reputation more than they inconvenience the owner. (Atacit assumption of this economic account is that artists are always the best judges ofwhat effect alterations will have on their reputation; thus, artists alone can decide whatchanges to prevent or allow.) Yet, of course, giving artists such a right to make changeswould be quite startling.57 Such a right is not a standard element of "Moral Rights," and

invention are likely to be made in order to improve the invention or adapt it better to the owner's owncircumstances-that is, to increase the invention's usefulness-alterations made by purchasers of an inventionare unlikely to harm the inventor's reputation. If anything, those "downstream" alterations might perpetuateand enhance the original inventor's reputation. Marconi's reputation, or Edison's, would be much less today-indeed, they might be wholly forgotten, rather than venerated-if other people had not altered and improved

upon those inventors' original inventions.

There are exceptions; for example, if the owner decides to disable safety features in the invention orotherwise increase its negative externalities. But that sort of concern does not plausibly argue in favor ofgiving a right of integrity to inventors; workplace safety regulations and tort law exist to handle suchproblems. Margaret Radin's account, which I shall discuss later, offers another straightforward alternative wayof distinguishing here between visual artists and inventors. Since that altemative is similarly unconvincing, Ishall defer my discussion of it until I turn to Radin's account in more detail in Part Ill.

The fact that artists and inventors receive different treatment need not entail that reputational externalitiesare Moral Rights' primary concern. A concern simply for the creator's own reputation explains the differenceequally well. Thus, there is a straightforward rebuttal to Hansmann and Santilli's argument that "it is notimportant for the radio that Marconi invented it, hence no right of integrity." Id. We might just as plausiblysay: it is important for Marconi's reputation as inventor of radio that others develop and improve his work;

hence no right of integrity.

Other explanations are also possible, including, we will later see, an explanation based upon respect forcreative excellence. I shall consider the simple reputation account in more detail in Part V, and in Part VI willexamine respect for creative excellence.

56. 17 U.S.C. § 106A(a)(3)(A)-(B) (2006).

57. Henry E. Smith suggested the possibility that someone could justify the asymmetry as a "penaltydefault" designed to provide incentives for artists to make full disclosure, at the time of sale, of all relevantinformation. This is doubtful. A penalty default makes sense if at the time of the sale the artist has better

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no American law gives artists that right. In fact, I am aware of no law anywhere in the

world that gives artists such a right.

2. Value of Protecting Reputation

Moreover, it is not clear why we would even care to protect the pecuniary

interests of artists and art collectors if artworks' market value depends largely on

something of such uncertain merit as artistic "reputation," or as some might say, on the

fickle winds of mere artistic fashion. Note that every dollar of market value that a

current owner loses in an artwork is a dollar that a future purchaser of that work saves.

Why then should the law step in to freeze the distribution of benefits between current

owners and future owners at whatever level the artist's current "reputation" has set it?

If reputation were an accurate proxy for intrinsic artistic excellence, a price set by an

artist's reputation might somehow seem "fair," and thus to have some claim to''protection" from "market failure." But perhaps only in the world of fashion or popular

music would it be less plausible to claim that reputation is an accurate measure of

intrinsic value than it is in the world of collectible visual art.58

One explanation for this solicitude over artists' and collectors' pecuniary interests

might arise out of concerns about incentives. Lower prices paid for art might cause the

volume of art production to drop below the level that society would deem optimal. Of

course, refraining from granting a right of integrity might not lead to less money being

spent on art overall-pricked reputational bubbles would drive down prices for an

individual artist's work, but might lead to higher prices for another artist's work as

fashion's favor shifted from the one to the other. However, even if the net result of not

information than the purchaser about whether later changes to the work would improve its reputation. In thatcase, a penalty default would help bring this information out. However, much of what Moral Rights laws coverare situations in which beliefs and preferences change after the sale-for instance, the purchaser later decidesthat he is no longer so fond of the work in its present state and wishes to alter it. Since these changes areunpredictable-presumably if at the time of the sale the artist already knew how to "improve" the work, theartist would have already implemented those changes before putting the work on the market-that informationdoes not yet exist for anyone to disclose when negotiating the sale. Thus it is hard to make sense of thisasymmetry as a penalty default.

58. For concerns about the effect of fads and hype on the art market, see Melissa Viney, A Working Life:The Art Consultant, GUARDIAN (London), Jan. 27, 2007, (Work), at 3 (quoting art consultant Spencer Ewen:"There's a lot of artists who are very well celebrated in their lifetime and that's because they play the game ofart. The game being working with dealers, getting out there and publicising yourself... There are some artistsout there who you can happily pay £150,000 for and you try to sell it the next day and you'd be lucky to get£1,000. It's all hype."); Robert Hughes, Speech at Burlington House (June 2, 2004) (transcript available athttp://arts.guardian.co.uk/features/story/0,, 1230169,00.html) ("But I have always been suspicious of the effectsof speculation in art, and after 30 years in New York I have seen a lot of the damage it can do: the suddenpuffing of reputations, the throwing of eggs in the air to admire their short grace of flight, the tyranny offashion."); John McCrone, Art for Money's Sake, DOMtNION POST (Wellington, N.Z.), Jan. 23, 2007,(Business), at 2 (describing the effects that hype had on the New Zealand art market). For empirical evidenceof the art market's high volatility, which may suggest that hype and fads have considerable influence, seeWilliam N. Goetzmann, Accounting for Taste: Art and the Financial Markets over Three Centuries, 83 AM.EcON. REV. 1370, 1374 (1993) (finding a much higher standard deviation in art market returns than infinancial market returns from 1716 to 1986); Andrew C. Worthington & Helen Higgs, Art as an Investment:Risk, Return and Portfolio Diversification in Major Painting Markets, 44 ACCT. & FIN. 257, 264-65 (2004)(finding a much higher coefficient of variation in art market returns than in financial market returns from 1976to 2001).

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granting a right of integrity were to diminish the overall amount of money spent on art,it is not clear that the end result would be less art produced. The artistic impulse maynot be particularly sensitive to monetary concerns. Indeed, Moral Rights laws are avery recent phenomenon in the history of civilization, and before their establishmentthere does not seem to have been any marked shortage of visual art or artists. 59

Moreover, there is a question of the sort of visual art production that we areencouraging. If protection of artistic reputations is the primary function of MoralRights laws, and if establishing such protections really does generate incentives toproduce, what it encourages is production of art whose value is especially dependent onthe artist's reputation-that is, art for which concerns about faddishness are especiallyacute. It is less than obvious that we would want the law to encourage production ofsuch art, much less want it to do so in a way that might encourage shifting of resourcesfrom the production of other art.

3. Alteration as Market-Value Enhancing

An additional general problem arises from the crucial assumption that an owner'salterations would likely diminish the market value of the artist's works. This problem isevident in the inherent tension between Hansmann and Santilli's arguments for thereputation-protection and cultural-protection justifications of Moral Rights laws.Discussing the "public interest in the integrity of a work of art ... as the embodimentof an idea," they say that the value to society of such a work

may not be well reflected in the value of the work to its private owner,...who may face a low market value for the work owing to the generallyconservative tastes of the most prosperous collectors and museums.Consequently, the owner may not only have insufficient incentive to protectand display the work, but may even have an incentive to alter or destroy it.60

The risk here is serious, and plausible: owners may be tempted to alter works toconform to the limited tastes of those who spend money on art. But note that thesealterations do not harm the artist's reputation, at least not in any way that diminishesthe resale value of the artist's art. Quite the opposite: the changes of concern hereenhance the art's resale value; indeed, that is their very purpose. But the fundamentalpremise behind the reputational externalities argument was that owners' changes woulddo the opposite-that they would harm the marketability of the artist's works. Thus,there is a tension, at the very least, between the argument that a right of integrity isnecessary to protect artists from owners' alterations, because those alterations willdiminish the marketability of the artist's work, and the argument that a right of integrityis necessary to protect the public from those same owners' alterations, because thosealterations will undermine the works' artistic integrity in order to enhancemarketability.

This is but one instance of a more general concern about an economic accountbased on reputational externalities. VARA states that it allows artists to prohibit

59. Charles Beitz makes a similar argument, noting "the apparent vigor of the world of visual art in theU.S. before enactment of the VARA, or of French art before the mid-nineteenth century, when judicial noticewas first taken of Moral Rights." Beitz, supra note 17, at 347.

60. Hansmann & Santilli, supra note 3, at 106.

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alterations that would harm their reputations, but then immediately adds that "any

intentional distortion, mutilation, or modification of that work is a violation of that

right."'6' Therefore, for the reputational externalities argument to be plausible as anexplanation of VARA, it must be the case that owners' alterations usually hurt theartists' reputations. There is no empirical evidence one way or the other, but evenarmchair theorizing makes this assumption seem unlikely. Law-and-economicsframeworks typically treat economic actors as rationally self-interested. And on thatassumption, it seems unlikely that many owners would diminish the market value ofthe works that they own by making alterations that harm the artists' reputation in thebroad art-purchasing community. 62 Much more likely would be alterations to bring theartwork more into line with community tastes-tastes which, after all, the owner is

likely to share.

B. How Good a Fit?

Despite these general concerns, the third-party-externalities account might stillhave some appeal if it provided a good fit for the actual contours of American MoralRights laws. Unfortunately, examining the actual provisions of those laws onlycompounds the theory's difficulties, for we quickly find that the theory fails to makesense of the statutes' distinctive features-waivability, non-transferability, permissionof destruction, and (in many cases) termination of rights at or near the artist's death.

We can consider each of these difficulties in turn.

1. Waivability

If the principle behind giving artists a right of integrity really is a desire to limitharm to third parties, then we would expect to find restrictions on artists' abilities towaive that right. Without such restrictions, the artist might waive the right for anypurchaser willing to pay the artist enough to compensate for the artist's own losses as aresult of the alteration, even though third-parties are also affected by the alteration yetreceive nothing. Of course, as Hansmann and Santilli suggest, a blanket prohibition onwaiver could prevent some alterations that are socially beneficial. 63 But since a blanketpermission of waiver would allow many alterations that are not socially beneficial, it isfar from obvious that, on balance, a blanket permission would lead to an efficientoutcome. Therefore, if third-party reputational effects really were a driving concern, wemight expect to find at least some restrictions on waiver. Yet we find the opposite: allof the Moral Rights statutes simply permit waiver.64

61. 17 U.S.C. § 106A(a)(3)(A) (2006) (emphasis added).62. Cf Lior Jacob Strahilevitz, The Right to Destroy, 114 YALE L.J. 781, 794 (2005) ("There are...

relatively few published opinions that squarely implicate an owner's fight to destroy his property. This factshould not be surprising. A new homeowner is more likely to want to exclude outsiders from his home than heis to want to raze it.").

63. Hansmann & Santilli, supra note 3, at 129 ("If... we interpret the right of integrity to extend to anyalteration whatsoever of a work of art, then making the right unwaivable may well prevent many potentiallyefficient transactions.").

64. E.g., 17 U.S.C. § 106A(e)(1). See also supra Part II.A.4, indicating that all state statutes make theright of integrity waivable.

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2. Transferability

VARA and the state laws prohibit transfer of an artist's Moral Rights (specifically,the authority to enforce those rights), a prohibition difficult to reconcile with aneconomics-based rationale. 65 Hansmann and Santilli themselves admit that thesealienability restrictions are "not a perfect arrangement," noting that an artist's interestsin a work can diverge from the interests of owners and the general public, especiallylate in the artist's career when the artist expects not to sell many more works and thus"no longer has a significant financial interest in maintaining his reputation." 66

Presumably, in such circumstances it would be more efficient to permit third partieswho would be harmed by damage to the artist's reputation to purchase the enforcementauthority from the artist, since the third parties value the enforcement authority muchmore highly than the artist does. 67

Hansmann and Santilli defend such prohibitions of transfer as "evidently imposedto prevent a fragmentation of ownership rights in the work of art that, through hightransaction costs and holdouts, could frustrate valuable uses of the work. '68 But thisexplanation is obscure, since allowing the artist to retain a right of integrity after sellingthe work has already fragmented the ownership rights, and transferring that retainedright to someone else does not fragment those rights any further; it merely changes who

owns the fragments.69

In a later paper, Henry Hansmann and Reinier Kraakman offered an alternatedefense to prohibitions on transferability based on "the ease of verifying the right" ofintegrity: "With inalienability, a prospective purchaser of a work of art knows withcertainty that the right exists and who holds it."'70 Although the desirability of certaintythat the right exists is hard to reconcile with the Moral Rights statutes' permitting

65. In fact, according to Hansmann and Santilli, "all legal regimes that recognize the right of integrityapparently make that right (and other moral rights they recognize) nonassignable to third parties who lack acopyright in the work." Hansmann & Santilli, supra note 3, at 126.

66. Id. at 121-22.

67. This argument presupposes that Hansmann and Santilli are correct about reputation as a primarycomponent of the value of a work of art. Someone who thought that ownership interests of those who careabout the artwork for its intrinsic artistic merit should count as more important than the ownership interests of

those who care primarily about how others perceive the artist might welcome an indifferent artist's allowingharm to his reputation at the end of his career-harm that would supposedly cause a drop in the market price

of the artist's works, since that drop would make the art more affordable to those who wished to acquire it forits intrinsic merit. On those assumptions, permitting purchase of the authority to enforce the right of integritywould not be optimal. Of course, assuming the existence of a qualitative hierarchy of interests, in which

interest in the reputation of an artwork has a relatively low position, rejects the essential premise of Hansmannand Santilli's framework.

68. Hansmann & Santilli, supra note 3, at 125-26.

69. Hansmann and Santilli also suggest that prohibiting transfer is not harmful, because it "seemsunlikely to prevent arrangements that offer important efficiencies." Id. at 126. For example, "it would not seemto prevent a painter from transferring to a trustee both his copyright and his moral rights in paintings he has

sold, to be exercised by the trustee for the combined benefit of both the artist (or his estate) and other ownersof the artist's works." Id. However, it is not clear that the statutes' anti-transfer prohibitions would permittransfer to a trust of which the artist was only one beneficiary among many.

70. Henry Hansmann & Reinier Kraakman, Property, Contract, and Verification: The Numerus ClaususProblem and the Divisibility of Rights, 31 J. LEGAL STUD. 373, 411 (2002).

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artists to waive the right, Hansmann and Kraakman surely are correct both that it isimportant for owners to know who holds the right, and that prohibiting transfer of theright would facilitate that knowledge. However, the law could achieve the samebenefits, without the inefficiencies attendant upon prohibiting transfer, by requiring,instead, that artists who wish to transfer their rights of integrity register those transfers.Hansmann and Kraakman worry that a registration requirement would impose"relatively high costs" on society to create and maintain such a registry, and on

purchasers to search that registry. 7' That worry seems unfounded, however, since wehave long had a well-established system for registering the ownership of regular

copyright, and modestly expanding or copying that system for Moral Rights seems topose no special difficulties. 72 Thus, it seems unlikely that the transfer restrictions inVARA are best understood as seeking to limit the economic costs of determining

ownership of the right of integrity.

3. Destruction

Although VARA allows artists to prohibit alteration of their works, it does notpermit them to prohibit those works' outright destruction, unless the works are of "arecognized stature." 73 Most state statutes are even more liberal in allowingdestruction.

74

Hansmann and Santilli offer a plausible account of why destruction is allowedeven if the law's primary concern lies in preserving the monetary value of artcollectors' works. Hansmann and Santilli acknowledge (in a different context) that toremove a work from "the artist's oeuvre as a whole" is to "diminish the value of theother works that make up that oeuvre." 75 On the other hand, as Hansmann and Santillialso note, destruction of one of an artist's works makes those works more scarce, andthus might actually increase the remaining works' market value. 76 Permittingdestruction makes sense, Hansmann and Santilli conclude, because destruction is morelikely to occur in the latter case than in the former: owners are unlikely to destroy awork if they can sell it for more than the price of preserving it until delivery, and the

fact that the original artist can himself repurchase the work if he wants to prevent its

71. Id. at 395.

72. The first registered copyright in the United States was in 1790. The first dedicated Register of

Copyrights was appointed in 1897. See U.S. COPYRIGHT OFFICE, CIRCULAR IA, UNITED STATES

COPYRIGHT OFFICE: A BRIEF INTRODUCTION AND HISTORY, http://www.copyright.gov/circs/circla.html

(last visited Nov. 14, 2011).

73. 17 U.S.C. § 106A(a)(3)(B) (2006).74. See supra Part II.A.2 noting that only three states prohibit destruction.75. Hansmann & Santilli, supra note 3, at 132 (discussing "the right of the artist to insist that his name

continue to be associated with a work that he has created"); see also id. at Ill ("[Diestruction of one of anartist's works reduces the value of the others ...."). Of course, if the eliminated work was markedly inferior tothe other works in the artist's oeuvre destruction of that work might not harm the artist's reputation. But, bythe same token, in such a situation alteration would cause little or no harm. Since the statutes prohibitalteration, the underlying assumption must be that such situations are rare.

76. Id. at 11.

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destruction "helps assure-though it does not guarantee-that works will be destroyedif and only if that is the efficient course." 77

However, even if permitting destruction does not undermine collectors' parochialeconomic interests, that permission is hard to square with Hansmann and Santilli'sassertion that the broader public has an interest in the preservation of cultural objectsand in artworks as embodiments of ideas.7 8 Destruction of artworks directly thwarts

that interest.

4. Termination

Under VARA, an artist's Moral Rights terminate when the artist dies. 79 Underseveral state statutes, those rights terminate fifty years after the artist dies.80 Theseprovisions are difficult to reconcile with the externalities account, since whether anartist is living or dead is irrelevant to the effect that altering one of the artist's artworkswould have on the artist's reputation. Nor does the general public's interest in culturalpreservation and embodied ideas change when an artist dies. Thus, if concern for suchexternalities really did motivate Moral Rights statutes, we would predict that thesestatutes would provide for infinite duration, rather than for termination at or not longafter the artist's death.

C. Inherent Limitations of Economics-Based Accounts

The struggles of economic analysis here should not be a surprise. The good of artis paradigmatically non-instrumental. Creating and appreciating art is a good for itsown sake, not because it is useful in helping us achieve some other goal. Thus, if theintegrity of a work of art is important, that importance is likely to rest on somethinginherent in the artwork or the artist, not in any instrumental costs or benefits the workmight also have-such as its contribution to the market value of a collector's artportfolio. Since economic analysis is primarily concerned with economic value,reaching non-instrumental value only indirectly, one might have suspected that artists'Moral Rights would be an especially unpromising candidate for a comprehensive

economic explanation.

Hansmann and Santilli are aware of this possibility. They suggest, at the start oftheir paper, that "because creators of those works we label 'art,' which are typicallyunique and highly individual works that require substantial skill and effort, commonlyfeel a peculiarly strong attachment" to those works, this attachment causes them tosuffer acutely when their work is "mutilated or mocked."' They further note that muchof commentary on Moral Rights "focuses on the potential for this type of subjective

77. Id. at 112.

78. Id. at 106; see also JOSEPH L. SAX, PLAYING DARTS WITH A REMBRANDT 9 (1999) ("There are many

owned objects in which a larger community has a legitimate stake because they embody ideas, or scientific andhistoric information, of importance.").

79. More precisely, they terminate at the end of the year in which the artist dies. 17 U.S.C. § 106A(d)(1),(4) (2006).

80. See supra note 47 for a list of these "death plus fifty" statutes.81. Hansmann & Santilli, supra note 3, at 103.

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nonpecuniary harm as the principal justification for the right of integrity."82 And theyconcede that that such harm "perhaps" provides "an adequate justification" for thoseMoral Rights laws. 83 But, as we shall see in the following Part, that concession to theexplanatory power of "personality"-based justifications was too generous.

IV. FAILURE OF "PERSONALITY" THEORIES

Since the purely economics-based account of these Moral Rights laws isinadequate, we need to find an alternative. The most prominent alternative accounts are"personality"-based theories, which seek to rest Moral Rights upon a relationshipasserted to exist between the artwork and the artist's personality. Although this sort ofapproach is commonly held to underwrite European intellectual property laws, untilrecently there were few explicit traces of it in American intellectual property theories.

In 1940, a Harvard Law Review article by Martin Roeder provided one of theearliest American expressions of this theory. An unabashed booster of European-styleMoral Rights, Roeder found existing American protections insufficient. In a passagethat would often be quoted, but only decades later, he asserted that

[t]he copyright law, of course, protects the economic exploitation of thefruits of artistic creation; but the economic, exploitive aspect of the problemis only one of its many facets .... When an artist creates,... he does morethan bring into the world a unique object having only exploitive possibilities;he projects into the world part of his personality and subjects it to theravages of public use.84

Roeder did not attempt to develop this "personality theory" in any depth-hisconcerns were more doctrinal-and for decades "personality" theories played little rolein postwar American debates about intellectual property. The seminal event changingthat debate seems to have been Margaret Radin's publication of Property and

Personhood.85

Radin's influential contribution was to distinguish between "personal property"and "fungible property. 8 6 "Personal" property is property that its owners feel is"almost part of themselves," objects that are "closely bound up with personhood

because they are part of the way we constitute ourselves as continuing personal entitiesin the world. '87 Radin offers both a few examples, including a wedding ring and ahouse, and a test for whether property is "personal": "[A]n object is closely related toone's personhood if its loss causes pain that cannot be relieved by the object'sreplacement. '88 One's family home is thus "personal property," in Radin's account,because the pain of losing the house in which one's family grew up does not disappeareven if one gains an equally nice house down the block.

82. Id. at 104.83. Id.

84. Roeder, supra note 3, at 557.85. Margaret Jane Radin, Property andPersonhood, 34 STAN. L. REV. 957 (1982).

86. Id. at 960. Radin described herself as giving a Hegelian analysis of property, id. at 977-79, but theextent to which her discussion tracks Hegel's actual views is not of concern here.

87. Id. at 959.

88. Id.

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"Fungible" property is the polar opposite of "personal" property. "Fungible"

property consists of objects that are "perfectly replaceable with other goods of equal

market value," objects which people hold "for purely instrumental reasons."9 9 Money is

Radin's paradigmatic example, but other examples include "the wedding ring in the

hands of the jeweler" and "the apartment in the hands of the commercial landlord."9

Radin suggests that wholly "personal" and wholly "fungible" property mark out

the two extremes of a continuum upon which we can place all sorts of property in the

world, and that "those rights near one end of the continuum-fungible property

rights-can be overridden in some cases in which those near the other-personal

property rights-cannot be." 91 Thus, "the personhood perspective generates a hierarchy

of entitlements: The more closely connected with personhood, the stronger the

entitlement.'92

It is straightforward to see how Radin's view might gesture toward a justification

of Moral Rights laws if one adds a view, like Roeder's, asserting an especially intimate

connection between artworks and their creators' personalities, a connection that makes

artists care about their works for more than merely instrumental reasons. Such a

connection would presumably place artworks close to the "personal" pole on the

property continuum, and thus justify giving artists enhanced entitlements with respect

to those works--entitlements greater than anyone else would enjoy.

The problem, of course, lies in shaping those vague assertions into a justification

for anything like the specific legal protections that Moral Rights laws actually give.

This task becomes especially tricky when we consider that purchasers of artworks

might themselves have strong personal connections to those works-collectors often

feel a special bond to objects in their collections-and thus, those works may be"personal" property for collectors as well as creators. Hence, it is not obvious which

party, if any, should have special legal entitlements against the other.93

Radin herself does not explore the specific applicability of "personality" theories

to Moral Rights laws, but others have, and the basic elements of such an analysis are

fairly simple to lay out. For analytical convenience, we might divide "personality"

accounts of Moral Rights into two different categories.

One category includes what we might call "imbued personality" accounts,

according to which the act of creation somehow imbues an artwork with the artist's

personality, so that the personality has a real presence in the work even after the work

has left the artist's physical possession. 94 The artist's personality is thus, it seems,

89. Id. at 960.

90. Id.91. Id. at 986.92. Id.

93. Radin explicitly notes the possibility that one person's rights to fungible property may impede

another's personal development by obstructing that second person's acquisition of "personal" property. Id. at990-91. However, she seems not to have noticed, or at least chose not to discuss, the possibility that the firstperson's personal property rights might also create obstructions.

94. Justin Hughes attributes to Hegel a view of this sort about property in general. Justin Hughes, ThePhilosophy of Intellectual Property, 77 GEO. L.J. 287, 333-35 (1988); see also Edward J. Damich, The Right

of Personality: A Common-Law Basis for the Protection of the Moral Rights ofAuthors, 23 GA. L. REV. 1, 4(1988) ("The crucial link between the American right of personality and the concept of moral rights is that

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spatially extended, existing not only where the artist is but also, at least in part, wherethe artist's works are. 95

The other category includes what we might call "personality development"accounts, according to which allowing the artist to continue to exert some control overan artwork, even after its sale to someone else, is essential for enabling properdevelopment of the artist's personality. The inspiration for this view seems to beRadin's suggestion that protecting "people's 'expectations' of continuing control overobjects" can be important: "If an object you now control is bound up in your futureplans or in your anticipation of your future self, and it is partly these plans for yourown continuity that make you a person, then your personhood depends on therealization of these expectations." 96 Although Radin may not have had intellectualproperty in mind when she made her argument, others have extended that reasoning toa Moral Rights context. Neil Netanel, for example, praises Moral Rights on the groundsthat "continuing author control is vital to self-realization and autonomy .... Thecreation of an intellectual work is only the first step in an author's assertion of self inthe external world.- 97

But how the "personality development" theory justifies grants of Moral Rights isunclear. Even if we assume, with Radin, that part of what makes us persons are ourplans for the future (an assumption which may be unwise to grant, since it threatens tounderestimate the personhood of the aged, the depressed, and the suicidal), it does notfollow that the state should grant Moral Rights, or take any other steps, to help ensurethat those plans come to fruition. Personhood, on this view, involves having plans forthe future, but plans for the future are not the same as realized plans. If the world endstomorrow, I am not any less of a person today even though my plans for the future willall be frustrated. So there is a gap in the argument here, and no obvious way to bridgeit.

Moreover, there is the straightforward and compelling objection that even ifhaving some control over property is necessary for self-realization and autonomy, it isnot at all clear that such necessity extends to the remarkable sort of control that Moral

works of art are expressions of the creative personality of the author, and insofar as these works continue toembody the author's personality, acts done to them that impair their ability accurately to reflect the author'spersonality should be actionable."); Neil Netanel, Copyright Alienability Restrictions and the Enhancement ofAuthor Autonomy: A Normative Evaluation, 24 RuTGERS L.J. 347, 363-64 (1993) ("[T]he Continentalcopyright doctrine .... views copyright essentially as a means to protect the author's individual character and

spirit as expressed in his literary or artistic creation .... [T]he author's work is seen, partially or wholly, as anextension of the author's personality, the means by which he seeks to communicate to the public."); Roeder,supra note 3, at 557 ("When an artist creates.., he projects into the world part of his personality and subjects

it to the ravages of public use.").95. The merits or demerits of this view from a metaphysical standpoint need not detain us, since this

Article argues that irrespective of those merits or demerits, the view is ill-suited to explain the contours of theMoral Rights laws that in fact exist. Moreover, Justin Hughes has criticized "Hegelian" views of this sort,arguing, inter alia, that it is hard to determine when someone has a personality stake in a given item, that it isunclear how legal protections should scale with the amount of personality imbued in an item, and that differenttypes of intellectual property differ in their permeability to personality. Hughes, supra note 94, at 339-44.

96. Radin, supra note 85, at 968.97. Netanel, supra note 94, at 403; see also Hughes, supra note 94, at 330 (citing and discussing Radin's

suggestion in the context of intellectual property).

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Rights give visual artists. We might think that there must be something particularlystunted about visual artists' capacities for personality development if that developmentcannot proceed wiihout giving those artists a veto over alterations to artworks that theyhave sold to others.

It is somewhat easier to see how an "imbued personality" account might justifythe existence of Moral Rights, especially a right of integrity. If an artwork really doescontain part of its creator's personality, then someone who alters that artwork withoutthe artist's permission distorts that portion of the artist's personality. This, in effect,mounts an assault upon the very person of the artist; or so someone might argue.98

This account does have some appealing aspects. For example, it can easily explainwhy American statutes exclude "works made for hire" from Moral Rights protections. 99

Because creative control over a work made for hire lies in the hands of the institutionthat hired the artist to execute the work, not in the hands of the artist himself, theartist's personality does not imbue such a work. 00 Hence, the artist has no personalvulnerability in the work, and thus no grounds for claiming a special right to preventchanges to that work.

Trouble arises, however, when we start to consider how well these personalityaccounts fit with other salient features of American Moral Rights law. One obviousdifficulty is with the refusal of VARA and the majority of state statutes to give artists aright against the complete destruction of their works.10' If protection against alterationof artworks is intended to prevent the unconsented alteration of part of an artist'spersonality, as the "imbued personality" account suggests, it is hard to see why artistswould not have an even stronger claim against the complete, unconsented eliminationof that part of the artist's personality. Similarly, if protection against alteration isintended to help artists form plans in ways necessary for self-realization and autonomy,we would again expect protection to extend to preventing destruction: destroying theirartworks would presumably frustrate their plans at least as much as altering those

98. If we take the philosophical issues here seriously, this conclusion is not at all obvious, even if we

grant the initial assumptions. Making this argument philosophically rigorous would require considering, interalia: exactly how an artist's personality imbues an artwork, and thus whether any change to the work

necessarily reaches that personality; whether whatever effect does result to the artist's personality differs in

type or in magnitude from the sorts of effects imposed on people's personalities by other sorts of actions that

do not trigger legal protections; and the extent to which, if an artist's "personality" can thus be extended

beyond the boundaries of the artist's physical person, these sort of effects on an artist's personality really are

effects on the artist's person. But we can leave such subtleties to the philosophers, since in a moment I shall

argue that this account, whatever its merits, is inadequate to existing legal practice.

99. 17 U.S.C. §§ 101(B), 106A(c)(3), 201(b) (2006). See supra Part It for a discussion of the statutory

framework for Moral Rights protections.

100. Cf Justin Hughes, The Personality Interest of Artists and Inventors in Intellectual Property, 16

CARDOZO ARTS & ENT. L.J. 81, 156-58 (1998) (discussing the artist-patron relationship and its implications

for assessing the extent to which a creative work incorporates an artist's personality).

101. Only California, Massachusetts, and Pennsylvania prohibit destruction. CAL. CiV. CODE

§ 987(c)(1) (West 2011); MASS. GEN. LAWS ANN. ch. 231, § 85S(c) (West 2011); 73 PA. CONS. STAT.

ANN. § 2104(a) (West 2011).

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works would. And yet, the statutes generally do not allow artists to prevent the

destruction of their works. 102

VARA does give artists the right to prohibit the destruction of certain artworks,

but limits that protection to works "of recognized stature."'1 3 Additionally, five state

statutes give artists the right to restrict alterations to works of "recognized quality."' °4

But if protecting artists' abilities to develop their personalities were the goal of these

laws, then one would not expect to find these threshold quality requirements, since

there is no reason to think that personality development in mediocre and bad artists

depends less on control over their sold artworks than personality development in

outstandingly talented artists does. Moreover, there is no apparent reason to believe that

only highly talented artists permeate artworks with their personalities. Even a dismal

artist may "pour his soul" into a work; the end result just-isn't very good. 05 So if

protecting artists' "imbued personalities" really were the goal, those quality threshold

requirements would be monstrously elitist exceptions to the law's general commitment

to protect all people equally against threats to their persons.

The statutes' termination provisions also pose challenges for the two personality-

based accounts. On the "personality development" view, it is hard to see why Moral

Rights protections would extend past the artist's death, since death presumably marks a

complete end to the artist's autonomy and personality development. Although VARA

does terminate the rights in the year of the artist's death, 10 6 the state statutes all allow

those rights to continue either for another fifty years or in perpetuity. 107

The "imbued personality" view might explain postmortem persistence of the

rights if one thinks that the artist's personality somehow persists in his artworks after

his death. But then both VARA's near-immediate termination and the several state

statutes that wait fifty years before termination are hard to explain. Having the right not

be perpetual would appear to be anathema on the "imbued personality view," since it

seems unlikely that an artist's personality somehow leaks out of an artwork over time

after the artist's death. Moreover, such a speculative metaphysical hypothesis is an

unlikely candidate for explaining American intellectual property law. And the fact thatthe artist has been dead for some time cannot make it somehow less of concern if

alterations are made to the scraps of personality that remain in his or her art; if

anything, the artist's death should make such alterations more worrisome, since he or

she is no longer alive to replenish or replace those few manifestations of the artist'spersonality that still exist.

102. See supra Part II.A.2, indicating that only three states explicitly prohibit the destruction of works of

recognized stature.

103. 17 U.S.C. § 106A(a)(3)(B).

104. CAL. Civ. CODE § 987(b)(2); LA. REV. STAT. ANN. § 51:2152(7) (2011); MASS. GEN. LAWS

ANN. ch. 231, § 85S(b); N.M. STAT. ANN. § 13-4B-2(B) (West 2011); 73 PA. CONS. STAT. ANN. § 2102.

105. For a nice example of this in a slightly different context, see the biographical film Ed Wood, about a

motion picture auteur who was legendarily inept but nonetheless entirely sincere and wholly committed to his

art. ED WOOD (Touchstone Pictures 1994).

106. 17 U.S.C. § 106A(d)(1).

107. CAL. CIV. CODE § 987(b)(2); LA. REV. STAT. ANN. § 51:2152(7); MASS. GEN. LAWS ANN. ch.

231, § 85S(b); N.M. STAT. ANN. § 13-4B-2(B); 73 PA. CONS. STAT. ANN. § 2102.

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One final concern about these "personality"-based accounts arises out ofHansmann and Santilli's observation about the different legal treatment accorded visualart and inventions. 108 That we do not grant the right of integrity to inventors is hard toexplain on those accounts: inventors presumably invest as much of their personalityinto their inventions as visual artists invest in their artworks, 10 9 and it is hard to seewhy continuing control over their work would be any more important for thedevelopment of artists' personalities than for the development of inventors'personalities.

V. EXPRESSIVISM, PRESERVATIONISM, REPUTATION

Although the economic and the personality theories are the most prominentaccounts in the Moral Rights literature, three other general theories also attempt toexplain or justify Moral Rights laws. One of these theories focuses on the laws'expression of certain social values; the second focuses on the importance of preservingartworks; and the third focuses on artists' interests in their own reputations. However,just as the economic and personality theories were inadequate to explain the observedfeatures of the Moral Rights statutes, these theories also turn out to be insufficient.

A. The Expressivist Argument

The expressivist argument states that giving artists special legal control over theirartworks enables society to express its esteem for art and to foster an environment inwhich art and artists are valued highly. (A tacit assumption is that such expression andfostering are good things.) For example, Thomas Cotter suggests:

[O]ne might argue that endowing artists with moral rights sends a messagethat art is not just a commodity, to be traded off against other commodities,but rather that artists' contributions to society are specially valued andappreciated. Moral rights therefore may be viewed as a means of alleviatingthe otherwise alienating conditions imposed upon artists by an economicsystem that, at present, may leave them little choice but to consent to thecommodification and defilement of their work.110

108. Hansmann & Santilli, supra note 3, at 110.

109. See, e.g., Evan Ratliff, 0, Engineers!, WIRED (Dec. 2000), http://www.wired.com/wired/archive/8.12/soul.html (quoting computer hardware engineer Jim Guyer as saying, "Look, I don't have to get officialrecognition for anything I do. Ninety-eight percent of the thrill comes from knowing that the thing youdesigned works, and works almost the way you expected it would. If that happens, part of you is in that

machine.").

110. Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. REV. 1, 43 (1997);see also id at 83 ("[O]ne might argue that the recognition of moral rights expresses a community standardthat, in light of the unique quality of art objects both to embody and to stimulate experience, these objects areentitled to some form of special protection. Allowing one to buy or sell the right to alter or destroy these workstherefore may be viewed as inconsistent with the community's 'considered judgment' conceming theappropriate way to value them."); Burton Ong, Why Moral Rights Matter: Recognizing the Intrinsic Value ofIntegrity Rights, 26 COLUM. J.L. & ARTS 297, 303 (2003) ("It is submitted that the intrinsic value of integrityrights lies in their uniquely expressive character. The recognition of these rights in a manner which favors theartistic sensibilities of the artist over the competing interests of those who own the objects in which the artist'sworks are embodied, [sic] signals a measure of respect for the artist's position within the community.... Bymaking available formal legal mechanisms through which an artist is able to preserve the authenticity of his

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The difficulty with such an argument is that VARA, and almost all of the statestatutes, protect artists from undesired alteration of their works but do not empowerartists to stop the complete destruction of those works."' Since destruction seems theultimate way of signaling that something is worthless, this limitation is hard to squarewith the notion that the statute is seeking to send a message that artists' contributionsare highly valued. Moreover, the expressivist account has no obvious way to explainthe statutes' prohibition against transfers of artists' Moral Rights, even as gifts torelatives. If expressing esteem for art and artists is the goal, such provisions seemwholly unmotivated. More generally, Moral Rights statutes simply seem to be aremarkably indirect and convoluted way of expressing society's appreciation for artists,when much more straightforward measures (such as exempting artists from sales taxfor sales of their own works, establishing awards and prizes for artists, or evendecreeing that every June will be "Thank an Artist Month") are available.

Nevertheless, William Landes has suggested that empirical data might supportthis expressivist argument. Asking why artists support Moral Rights laws, despite thelikelihood that such laws might cost them economically, Landes expressed doubt thatartists are unaware of those costs, and suggested that

[a] more likely explanation relates to the expressive value of these laws.Suppose the rhetoric surrounding these laws and the prestige of the peoplesupporting them signal to the community at large that art is a highly valuedsocial enterprise. In turn, this creates greater interest in art and a morefavorable social environment for artists. And if the non-monetary benefits ofmoral rights laws more than offset their economic harm, which [Landes'equations] suggest is insignificant, artists will desire to work and live instates with these laws.112

Landes investigated this hypothesis by running regressions to determine howstrongly changes in a state's number of artists per capita correlated to whether the stateenacted Moral Rights laws. Landes took the number of artists per capita to be anapproximate proxy for how "favorable" the state's "social environment" was for artists:"Other things the same, if moral rights laws enhance the artist's social environment(even though his monetary income may fall), one should observe larger relativeincreases from 1980 to 1990 in the number of artists in states that passed moral rightslaws in the 1980s compared to states that did not.""' 3 Landes ultimately found theempirical evidence insufficient to confirm this hypothesis," 4 but he did see "somesupport" for the hypothesis in his finding that "the per capita number of artistsincreased more rapidly in states that enacted moral rights laws in the 1979 to 1987

artistic expression, integrity rights establish an atmosphere of respect within a community for the creativeefforts of members of that community.").

111. See supra Part II.A.2 for a discussion of the general statutory silence on the destruction of artisticworks.

112. William M. Landes, What Has the Visual Artist's Rights Act of 1990 Accomplished?, 25 J.CULTURAL ECON. 283, 298 (2001).

113. Id. at 298.114. Id. at 299 ("[O]ne cannot reject the null hypothesis that the number of artists would have remained

constant in a state in the 1980 to 1990 period, if the values of the other independent variables had remainedconstant.").

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period, holding constant the other socio-economic variables in the regression and thelagged value of the dependent variable."'"15

Landes's results are interesting, but they do not really suggest that expressingsupport for artists is a central attribute of these Moral Rights laws. Since Landes'sstudy reduces the favorability of a state's environment to the per capita number ofartists in that state, what the study really suggests is that "artists ... prefer working andliving in states that have these laws."' 116 Thus, the study shows, at most, only that thestate Moral Rights statutes were effective in creating a legal environment that was moreattractive to artists. It does not show that the effect was the result of any expressiveeffect of the law rather than simply the result of artists' preferring, all else being equal,to live in jurisdictions where they have more rights rather than in jurisdictions wherethey have fewer. 1 7

B. The Preservationist Argument

The preservationist argument is that Moral Rights laws aim, at least in significantpart, to preserve art for the benefit of society as a whole. Justin Hughes offers a variantof this argument, asserting that protecting expressions from alteration is necessary tosecure the benefits that freedom of expression provides to those who receive thatexpression. " 18

There are some textual reasons for drawing a connection between preservationistconcerns and the existence of these statutes. The pioneering California statute's officialtitle is "The California Art Preservation Act."' 19 Nine years after enactment of that act,the California legislature passed a law requiring preservation of an underwater mural(by David Hockney) in the Hollywood Roosevelt Swimming Pool, finding that "[t]oallow needless destruction of this unique work of art would be a great tragedy andinconsistent with the intent of the California Art Preservation Act, which establishes 'apublic interest in preserving the integrity of cultural and artistic creations."" 20 Turningto the east coast, the title of Pennsylvania's statute is the "Fine Arts PreservationAct,"'121 and the statute's preamble includes a finding that "[t]he ongoing creation and

115. Id.116. Id.

117. Later, this Article shall argue that an account based on respect better explains the contours ofexisting Moral Rights laws. See infra Part VI. Such an account is compatible with Landes's empirical findings.Even if the law does not itself express the overall culture's respect for art, or encourage a higher socialvaluation of art and artists, it may provide legal recognition of a pre-existing moral duty of respect thatindividuals have toward artworks' creative excellence. And artists may prefer to live where that legal

recognition exists.118. Hughes, supra note 100, at 359-60, 363-64; see also Roeder, supra note 3, at 575 ("The real

reason, however, for protection of the moral right after the creator's death lies in the need of society forprotection of the integrity of its cultural heritage."); Stem, supra note 7, at 880 ("The current system that relieson a variety of different sources for postmortem rights [i.e., state and federal Moral Rights statutes] fails toserve a foundational purpose of moral rights-art preservation."). For a detailed discussion of the importanceof art preservation in a more general context, see SAX, supra note 85.

119. 1979 Cal. Stat. 1501 (codified as amended at CAL. CIV. CODE § 987 (West 2011)).120. Act of Mar. 17, 1988, ch. 34, § 1(c), 1988 Cal. Stat. 232.

121. 73 PA. CONS. STAT. ANN. §§ 2101-2110 (West 201l).

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preservation of fine art contributes to the cultural enrichment and, therefore, general

welfare of the public."'122 The section heading for the relevant portion of Maine's code

is "Preservation of works of art. 11

23 Similarly, Massachusetts's statute has

"Massachusetts Art Preservation Act"' 24 as its popular name, and its findings section

declares that "there is also a public interest in preserving the integrity of cultural and

artistic creations."'25

However, although preservation concerns may have provided some motivation for

certain Moral Rights statutes, such concerns seem, at most, to be only a small piece of

the best understanding of these statutes, since existing Moral Rights laws are a

strikingly poor way of preserving art, for several reasons: First, the right of integrity

that these statutes provide is waivable.' 26 Second, enforcement is at the artist's

discretion. Third, society does not have standing to enforce the right (except in

California); only the artist does. 127 And, fourth, in the case of VARA and several state

statutes, the right vanishes altogether either in the year of the artist's death or on the

fiftieth anniversary of the artist's death, even though there is no reason to believe that

society's interest in preserving the artist's work ends so abruptly. 128

122. Fine Arts Preservation Act, Pub. L. No. 1986-161, 1986 Pa. Laws 1502 (codified as amended at 73PA. CONS. STAT. ANN. §§ 2101-2110).

123. ME. REV. STAT. ANN. tit. 27, § 303 (2011).

124. Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89, 92 (D. Mass. 2003).

125. MASS. GEN. LAWS ANN. ch. 231, § 85S(a) (West 2011).

126. Charles Beitz also noticed this problem. Beitz, supra note 17, at 348 ("[T]he social interest inprotecting the artistic heritage .... argue[s] against allowing Moral Rights to be waived or transferred ....").

127. California gives public and not-for-profit private arts organizations standing to seek injunctions

against violations of the state's Moral Rights statute. CAL. CIV. CODE § 989(c) (West 2011). Massachusetts

and New Mexico are two other minor exceptions. Both allow their state attorneys general to bring suit to

enforce the right, but only on the artist's behalf, only after the artist's death, and only with respect to works

that are on public view. And in both of those states, the right terminates on the fiftieth anniversary of theartist's death. MASS. GEN. LAWS ANN. ch. 231, § 85S(g); N.M. STAT. ANN. § 13-4B-3(E) (West 2011).

128. These concerns also explain why Lior Strahilevitz's account of Moral Rights' anti-destructionprovisions is unconvincing. Strahilevitz argues that prohibiting destruction makes sense because expression of

ideas is socially valuable, and "creation contributes an idea whereas destruction of unique property attempts towipe out an existing idea." Strahilevitz, supra note 62, at 828. That protection from destruction ends when the

artist dies poses a problem for Strahilevitz's account, since the artist's death presumably does not affect the

social utility of the artist's ideas. Strahilevitz attempts to explain this limitation by arguing, first, that "[a]fterthe artist has died, there is little expressive interest to be balanced against the living destroyer's expressive

interest," and, second, that "in the case of works exhibited well before the artist's demise, the idea in question

already has been voiced for a substantial period of time, so destruction may be justified on collectivist [i.e.,

social utility] grounds." Id. at 829.

However, it is unlikely that the expressive value of an artwork of recognized stature is exhausted over

time. The value of such a work often lies not in the specific idea that it expresses but in how it expresses that

idea. That war and massacre are bad is a clich6; what Pablo Picasso's Guernica does is cut through that clich6,making the underlying truth vivid and salient. Even though Guernica is decades old, the expressive collectivitywould suffer if someone were allowed to destroy the painting in the mistaken belief that it had already said all

that it had to say.

Strahilevitz somewhat diffidently offers one final argument: "VARA's default rule could be socially

efficient if artists cared about preventing destruction but did not care enough about destruction to warrant the

costs of formalizing antidestruction agreements." Id. at 829 n. 193. However, concerns about efficient

contracting are an unlikely explanation for these provisions, since the statutes make protection against

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C. The Reputation Theory

The reputation theory is noteworthy for its straightforwardness: Moral Rights lawsexist simply to protect artists' reputations, not because of any concern aboutexternalities involving society or other owners of the artist's work, but merely in orderto avoid the harm that artists would personally experience if purchasers' alterationsdamaged those artists' reputations.1 29

The main argument in favor of this simple reputation theory is a straightforwardappeal to the language of the statutes. For example, VARA's central provision giveseach visual artist the right to prevent changes "which would be prejudicial to his or herhonor or reputation."'130 And among the state statutes, only Rhode Island's statute lacks

explicit mention of harm to the artist's reputation either in preliminary "findings" or inthe specification of conditions under which the right of integrity will apply.131

This theory might be able to make sense of Moral Rights laws' allowing artists towaive their right to prevent alterations, by noting that some alterations will not harmthe artist's reputation, and sometimes the artist may not care what effect alterations to agiven work may have on the artist's reputation. Thus, if the aim of Moral Rightsstatutes is to protect artists from experiencing subjective harm, then if an artist does notcare much about alterations to a given work, there is no reason not to let that artistwaive the right to prevent such alterations. By the same token, prohibiting transfer ofthe right would also make sense, since forsaking one's own right to prevent changes toa particular artwork tacitly admits one's lack of concern about how such changes mightaffect one's reputation. Thus, attempting to transfer the right would concede that, inthat particular case, the subjective harm that the right was intended to protect againstdoes not exist. Hence there would be no reason to allow the transferee to exercise thatright.

However, the simple reputation theory quickly stumbles when faced with othercentral provisions of American Moral Rights statutes. One basic problem for thistheory is explaining why the specific Moral Right that many statutes grant is a right toprevent alterations rather than just a right to have the artist's name dissociated fromworks that have been altered without the artist's permission (i.e., a "negative right ofattribution"). Although five state statutes do provide what might be considered aparticularly stringent variant of a negative right of attribution-prohibiting not merelyassociation of an artist's name with works that have been altered by others in a way thatmight reasonably be expected to harm the artist's reputation but any public display ofthose artworks at al132-a majority of the Moral Rights statutes either provide a right

destruction the default only for some art, namely art of recognized stature (which, moreover, is likely to be a

small minority of all art sold).

129. Joseph Sax appears to subscribe to this view, asserting that droit moral is "a sort of defamation law,

under which protection of the objects that are the artist's work is necessary to protect the artist's reputation."

SAX, supra note 78, at 22.

130. 17 U.S.C. § 106A(a)(3)(A) (2006).

131. See R.I. GEN. LAWS ANN. §§ 5-62-2 to -6 (West 2010).

132. Statutes in Louisiana, Maine, Nevada, New Jersey, and New York give a right only against public

display of artworks that have been altered in a way that one might reasonably expect would harm the artist's

reputation. See supra note 35 and accompanying text.

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against public display of altered work, whether or not any harm to the artist'sreputation is reasonably expectable, or permit the artist to prevent any alterations, notjust to demand removal of the artist's name from altered works or to prohibit publicdisplay of those works. 133 Thus, the simple reputation theory leaves the centralprovision of a majority of Moral Rights statutes quite mysterious.

Moreover, if we are to understand the statutes as concerned with the artist'sexperiencing harm from damage to his or her reputation, then since artists who havedied are beyond all earthly experience, such a theory would seem at a loss to explainthose state statutes that extend the right for fifty years after the artist's death, or, evenmore perplexingly, make the right essentially perpetual.

VI. AN ALTERNATIVE FRAMEWORK: RESPECT FORARTWORKS' CREATIVE EXCELLENCE

Thus far, we have considered economic, personality-based, expressivist,preservationist, and reputation-based accounts of Moral Rights laws, and found all of

them wanting. Incompatibility with central features of American Moral Rights lawsmade each of those approaches implausible as a general account of those laws. In thisPart, we shall see how making sense of American Moral Rights law is neverthelesspossible by focusing on a moral duty of respect. (Note the lower-case "m" in "moral.")However, simply invoking respect in general is not adequate. This account relies upona very specific sort of respect-respect for artworks' creative excellence.

A. Respect for Excellence in a Broader Context

Our first step is to see why respect for artworks' creative excellence is a plausiblecandidate for an analysis of Moral Rights statutes. To do that, we can note both theaccount's intuitive plausibility and its roots in a broader context of cultural attitudestoward respecting excellence.

Several scholars, with diverse theories of their own, have seen respect playingsome role as a foundational principle for legal and moral rules concerning alteration ordestruction of art. For example, Joseph Raz has offered arguments for artisticpreservation based on general moral requirements of respect for "art." Raz asserts that

if I own a Van Gogh painting, I am under a duty not to destroy it, because "to destroy itand deny the duty is to do violence to art and to show oneself blind to one of the valueswhich give life a meaning. . . . [E]veryone has a duty of respect towards the valueswhich give meaning to human life."' 34 Charles Beitz has suggested that at least part ofthe justification of Moral Rights laws "will most likely have something to do withrespect for the creator's unforced, intentional creative effort, or as we might say, with

133. New Mexico's and Rhode Island's statutes provide the former sort of right; VARA and statutes inCalifornia, Connecticut, Massachusetts, and Pennsylvania provide the latter sort. See supra notes 34, 36-37and accompanying text.

134. J. Raz, Right-Based Moralities, in THEORIES OF RIGHTS 182, 197 (Jeremy Waldron ed. 1984). Asnoted earlier, preservationist accounts will not be successful as analyses of American Moral Rights lawbecause those laws permit destruction. See supra Part V.B for a discussion of the preservationist theories andmoral rights.

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the creator's autonomy. ' 135 And Roberta Kwall has suggested in passing that "[c]entralto moral rights is the idea of respect for the author's meaning and message as embodiedin a tangible commodity because these elements reflect the intrinsic creativeprocess."'

136

These commentators' remarks about respect, although quite brief, reflect animportant feature of American cultural practices, where respect for excellence, andnotions about the appropriateness of such respect, have a prominent place. This senseof the importance of respect for excellence manifests itself in a wide range of contexts,encompassing many domains of human endeavor, not just art. These practices includethe awarding of medals and prizes, the creation of "halls of fame," the naming of publicschools and roadways, the establishment of holidays and named days, and thededication of monuments.

Consider, for example, American society's pronounced tendency to celebrate-indeed, revere-athletic excellence. Championship athletes and professional sportsteams routinely receive public awards (e.g., "keys to the city") and parades, oftenattended by thousands or tens of thousands of supporters.'37 At an individual level, thedesire to associate with and pay tribute to an athlete's excellence spurs purchases ofreplica sports jerseys and other memorabilia, and products endorsed by the successfulathlete. 38 Although the mere fact of association with a fan's own hometownpresumably accounts for some of this behavior-fans tend to root for the home team-

135. Beitz, supra note 17, at 351. Note that, for several reasons, Beitz's justification for Moral Rightsdoes not work well as an explanation for the Moral Rights statutes that actually exist. First, because hisaccount implies that alienation of the right should be permitted. Id. at 357-58. Second, because it seemsincompatible with permitting destruction of artworks. Third, because it seems incompatible with limitingprotections to works of "recognized quality." And, fourth, because much visual art may not be part of anycommunicative project in the first place. But see SAX, supra note 78, at 197-98 (asserting that certain culturalmasterworks "belong in the public domain because they are basic building blocks of our common agenda: theacquisition and dissemination of knowledge, and the encouragement of genius").

136. KWALL, supra note 11, at 6. Kwall does not elaborate on the role of respect in her theory of MoralRights law, which asserts that rights of attribution and integrity are protected in order to "safeguard theauthor's meaning and message, and thus are designed to increase an author's ability to safeguard the integrityof her texts." Id. Although Kwall's theory does not fit with what we actually observe in American MoralRights laws-which permit destruction without the creator's consent-Kwall's goal is not to offer an analysisof existing American Moral Rights law, but rather a critique of what she takes to be that law's inadequacy infulfilling the purposes that she believes Moral Rights law ought to fulfill. Id. at xv.

137. See, e.g., Jonathan Abrams & Catherine Skipp, Cheers in Miami, Jeers in Ohio, and Knicks JustTry to Move On, N.Y. TIMES, July 10, 2010, at Dl (star basketball players Lebron James and Chris Boshawarded keys to Miami); Champion Lakers Celebrate with a Parade, WASH. POST, June 22, 2010, at D2("[hiundreds of thousands" of fans attended a parade saluting the Los Angeles Lakers after the team won the2010 NBA championship); Jen A. Miller, City Stops to Enjoy Parade as Phillies Fans Flood Broad Street,N.Y. TIMES, Oct. 31, 2008, at D2 (reporting that more than one million fans attended the Philadelphia Phillies2008 World Series parade, "nearly shut[ting] down the city"); George Vecsey, Amid Celebrations and theCheers, Cashman Reflects, N.Y. TIMES, Nov. 7, 2009, at D1 (New York Yankees baseball team given ticker-tape parade and keys to the city after winning the 2009 World Series).

138. Perhaps the most prominent example of this phenomenon is the success of Nike's "Air Jordan"sneakers and apparel, associated with hall-of-fame professional basketball player Michael Jordan. The initial1985 launch of the Air Jordan line generated approximately $100 million in sales, and by 1999, sales hadclimbed to approximately $500 million per year. Don Amerman, Slow Growth Pinches Footwear Traders,Retailers, J. COM., May 3, 1999, at I1A; DavidBeckham: RealMoney, ECONOMIST, Mar. 11, 2004, at 98.

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the level of excellence displayed by the relevant athlete or team is also a significantfactor. Athletes who lack skill rarely receive public accolades, and memorabilia salesare less brisk for losing teams and players than for their winning counterparts.' 39

Moreover, sports fan behavior recognizes a norm of respecting extraordinaryexcellence even when that excellence comes at the expense of one's own favoredathlete or team. For example, it is common for baseball fans to give a standing ovationto a visiting team's pitcher who throws a no-hitter or achieves a significant careermilestone even though that pitcher's excellence defeated the home team, for whommost of the fans in attendance came to root. 140

In a similar vein, debates over which athletes deserve admission to prominentsports halls of fame are frequent, detailed, and passionate.14' In recent years, thesedebates have taken on an additional dimension as the widespread use of performanceenhancing drugs, including steroids, has raised questions about whether players whoused such drugs merit honoring, since their records of accomplishment have arguablybeen tainted by their drug-produced unfair advantage. 142 The integrity of the process

139. For examples of the connection between team success and sales of the team's merchandise, see

NFL Licensed Merchandise Sales Up Over 25% Over Last Four Seasons, AMUSEMENT Bus., June 3, 1989, at

14 (noting that the Washington Redskins "Super Bowl victory in 1988 pushed team merchandise sales up from

sixth in the league to second" in the subsequent year, while the San Francisco 49ers victory in Super Bowl

XXIII "boosted sales up to a No. 4 ranking, from No. 7 the previous year"); Sales at Both the NBA Store in

New York and NBAStore.com Through March Are Up 17% Compared to the Prior Year, LICENSING LETTER,

Apr. 21, 2008, at 2 (reporting that National Basketball Association officials attributed increased team

merchandise sales in part to improved play by three league teams, "[piroving yet again the truism that team

merchandise sales levels mostly track oncourt [sic] success").

140. See, e.g., Greg Bishop, On First Try, Johnson Earns Place in Elite Club, N.Y. TIMES, June 5, 2009,

at B I1 (reporting that fans in Washington, D.C. gave a standing ovation to San Francisco Giants pitcher Randy

Johnson, who recorded his 300th career win by defeating the Washington Nationals); Martin Frank, Halladay:

Simply Perfect, NEWS J. (Wilmington, Del.), May 30, 2010, at Sports (reporting that fans in Miami gave a

standing ovation to Philadelphia Phillies pitcher Roy Halladay, who threw a perfect game against the Florida

Marlins); see also Rob Biertempfel, Polling the Pirates Clubhouse, PITT. TRIBUNE REV., Apr. 5, 2009,

(reporting a Pittsburgh Pirates player's observation that St. Louis baseball fans "really know baseball," as

evidenced by the fact that he "always see[s] them give standing ovations, even to opposing teams' players,

after great plays").

141. A prominent recent example in professional football was the debate, extending over nearly a

decade, about whether former Washington Redskins wide receiver Art Monk deserved induction into the NFLHall of Fame. See, e.g., Michael Wilbon, At Last, No Debating Their Hall Pass, WASH. POST, Aug. 1, 2008, at

El (criticizing the delay in electing Monk to the Hall of Fame and responding to arguments that statistical

measures of Monk's performance indicated that he should not be elected). These sorts of debates extend

beyond players to include coaches and even owners. See, e.g., Tyler Duffy, Does George Steinbrenner Belong

in the Baseball Hall of Fame?, THE BIG LEAD (July 19, 2010, 2:30 PM), http://thebiglead.com/index.php/2010/

07/19/does-george-steinbrenner-belong-in-the-baseball-hall-of-fame (offering arguments for and against

former New York Yankees owner George Steinbrenner's inclusion).

142. See, e.g., Robert Schlesinger, Steroids, Baseball and the Hall of Fame, U.S. NEWS & WORLD

REPORT (July 26, 2009), http://politics.usnews.com/opinion/blogs/robert-schlesinger/2009/07/26/steroids-

baseball-and-the-hall-of-fame.html (reporting four commentators' diverse answers to the question of "how

should [Major League Baseball Hall of Fame] voters handle the steroid era"); Dave Sheinin, Steroids Scandalon Deck for Baseball Hall Voters, WASH. POST, July 30, 2006, at El (describing the debate as the first steroid-

tainted baseball players became eligible for consideration for induction into the Major League Baseball Hall of

Fame); The Ins, Outs of Legacies, TULSA WORLD, Mar. 26, 2005, at B8 (collecting diverse opinions about

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for determining and paying respect to athletic excellence has such popular appeal thateven Congress has been motivated to investigate the extent of steroid use in baseball. 143

Showing respect for excellence is a part of America's cultural fabric in other areasas well. The United States is the home to halls of fame for inventors, 14 4 musicians, 145

aviators, 146 astronauts, 147 automobile makers,141 television professionals, 149 and-

demonstrating that enthusiasm for honoring excellence may stretch sometimes to thepoint of absurdity-even costumed sports team mascots.15 0 Meanwhile, famous prizessuch as the Nobel Prize and the MacArthur Foundation "genius grants" pay tribute toexcellence in academic inquiry and artistic creation. (Although the Nobel Prize is notan American award, it looms large in the American popular imagination, ranging fromcoverage of the awards in prominent news media outlets,151 to Hollywood portrayals ofits recipients. 152) Distinguished academics are also honored by membership in theNational Academy of Sciences and in the American Academy of Arts and Sciences.Successful explorers and inventors are accorded a wide range of honors as diverse as

whether the baseball Hall of Fame should exclude Mark McGwire because of allegations that he used

steroids).

143. See, e.g., John Files, Union Not Ready to Commit to Mandatory Steroid Tests, N.Y. TIMES, June 19,

2002, at D5 (reporting on Major League Baseball union leader Donald Fehr's testimony before a U.S. Senate

subcommittee, quoting Democratic U.S. Senator Byron Dorgan as referring to steroid use as a "pressing social

problem," and quoting Republican U.S. Senator John McCain as saying that "[w]e must send a clear message

that the use of all performance-enhancing drugs, including steroids, is wrong"); Barry Svrluga, Making His

Pitch in Attempt to Clear the Air, Hurler May Have Clouded Legacy, WASH. POST, Feb. 14, 2008, at El(reporting on testimony by baseball player Roger Clemens before the House Oversight and Government

Reform Committee).

144. The National Inventors Hall of Fame and Museum is currently located in Alexandria, Virginia, inthe headquarters building of the United States Patent and Trademark Office. Hall of Fame Overview, INVENT

Now, http://www.invent.org/hall-of fame/ 0 0_hallof fame.asp (last visited Nov. 14,2011).

145. E.g., COUNTRY Music HALL OF FAME & MUSEUM, http://www.countrymusichalloffame.org (last

visited Nov. 14, 2011); ROCK & ROLL HALL OF FAME & MUSEUM, http://rockhall.com (last visited Nov. 14,

2011).

146. THE NATIONAL AVIATION HALL OF FAME, http://www.nationalaviation.org (last visited Nov. 14,

2011).

147. UNITED STATES ASTRONAUT HALL OF FAME, http://www.kennedyspacecenter.com/astronaut-hall-

of-fame.aspx (last visited Nov. 14, 2011).

148. AUTOMOTIVE HALL OF FAME, http://www.automotivehalloffame.org (last visited Nov. 14, 2011).

149. ACADEMY OF TELEVISION ARTS AND SCIENCES HALL OF FAME, http://www.emmys.tv/awards/hall-

fame (last visited Nov. 14, 2011).

150. MASCOT HALL OF FAME, http://www.mascothalloffame.com (last visited Nov. 14, 2011). This

particular Hall appears to lack any physical presence, existing solely online.

151. See, e.g., Nelson Hernandez, 3 Physicists Win Nobel Prize, WASH. POST, Oct. 8, 2008, at A8(noting that an American physicist and two Japanese physicists were awarded the Nobel Prize for Physics);

Don Lee, Two U.S. Professors Share Nobel Prize, L.A. TIMES, Oct. 13, 2009, at B I (noting that two American

professors were awarded the Nobel Prize in Economic Sciences); Dennis Overbye, Three Win Nobel Prize for

Ribosome Research, N.Y. TIMES, Oct. 8, 2009, at A25 (noting that two American chemists and an Israeli

chemist were awarded the Nobel Prize for Chemistry).

152. See, e.g., A BEAUTIFUL MIND (Universal Pictures 2001) (based on the true story of economics

Nobel Prize winner John Nash); THE PRIZE (Metro-Goldwyn Mayer 1963) (a fictional thriller centered around

an author who has arrived in Stockholm to accept the Nobel Prize for literature).

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ticker-tape parades for Apollo astronauts returning from the moon, 15 3 a federal holiday

honoring Christopher Columbus, and a national historic landmark designation for the

garage where Bill Hewlett and Dave Packard developed their first product, sparking the

creation of Silicon Valley.'54

Honoring and respecting creative excellence in the arts has a similarly prominent

place in American cultural practices. The most obvious way in which this concern

manifests itself is in the plethora of awards that are given for creative excellence, and in

the debates and anticipation which accompany those awards, some of which have a

very high profile in popular consciousness. Annual telecasts of events announcing the

winners of awards such as the Oscars (for motion pictures), the Emmys (for television),

and the Grammys (for music) draw millions of viewers and vigorous-sometimes

heated-debate about the merits of each year's contenders. 155 Myriad other awards

honor works displaying creative excellence in a broad spectrum of mediums ranging

from the popular to the esoteric. The Pulitzer Prize for Fiction, the Hugo Awards for

science fiction and fantasy literature, the Edgar Awards for mystery fiction, the Pritzker

Architecture Prize, the Caldecott Medal and Newberry Medal for children's literature,

and the Charles S. Roberts Awards for board games that simulate historical military

conflicts are just a few examples.

Although most of these awards are privately administered, this practice of

honoring excellence extends to public officials and institutions as well. Thus, for

example, recipients of the Kennedy Center Honors for artistic achievement traditionally

receive a reception at the White House and a banquet at the State Department. 15 6 The

Presidential Medal of Freedom is awarded annually to honor outstanding achievement

in many walks of life, including the arts, 157 and the Librarian of Congress annually

appoints a Poet Laureate. 58

153. See, e.g., Murray Illson, Parade this Morning Will Honor Apollo Astronauts, N.Y. TIMES, Aug. 13,1969, at 29 (reporting on the ticker-tape parade in New York City for returning Apollo 11 astronauts); Bernard

Weinraub, A Jubilant Houston Parade Honors the Apollo 11 Astronauts at the Finale of Celebrations inNation, N.Y. TIMES, Aug. 17, 1969, at 22.

154. See Therese Poletti, This Garage: A Landmark Property Where HP was Founded Now Listed onU.S. Historic Registry, SAN JOSE MERCURY NEWS, May 18, 2007, at ID (reporting the designation and quoting

a historian with the National Register of Historic Places as saying that "[wihat this building represents is

entrepreneurship").155. Approximately 41.7 million people watched the 2010 Academy Awards ("Oscars"). Oscars are

Gold for ABC, L.A. TIMES, Mar. 12, 2010, at D23. Approximately 13.3 million people watched the 2009Emmy Awards. Joe Flint, The Emmy Awards: Ratings Slide is Reversed, L.A. TIMES, Sept. 22, 2009, at D3.Nearly 27 million people watched the 2011 Grammy Awards. Prime-Time TV Rankings; CBS Hits GrammyHigh Note; The Music Award Show Had Its Biggest Audience in 11 Years, Drawing 26.7 Million, L.A. TIMES,

Feb. 16, 2011, at D12. Examples of debates about the worthiness of award nominees and winners are legion.

See, e.g., Stephen King, Analyzing Oscar, ENT. WKLY., Mar. 17, 2006, http://www.ew.com/ew/article/0,, 1170

378,00.html (criticizing the unexpected award of the 2006 Best Picture Oscar to Crash rather than toBrokeback Mountain as a manifestation of Academy voters' anti-gay bias rather than an accurate assessmentof the two films' relative merits); Erik Lundegaard, Oscar Misfire: 'Crash' and Burn, MSNBC.COM (Mar. 6,2006), http://today.msnbc.msn.com/id/11700333 (criticizing Crash as "the worst best picture winner since'The Greatest Show on Earth' in 1952").

156. Kennedy Center Honors, THE FREMANTLE CORP., http://www.fremantlecorp.com/kennedy-center-

honors (last visited Nov. 14, 2011).157. Presidential Medal of Freedom Recipients, UNITED STATES SENATE, http://www.senate.gov/pagela

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Establishment of public monuments is another common manifestation of the feltimperative to honor excellence. Funding for these monuments may come from privatesources, but public entities play a pivotal role in permitting use of public park space forthe monuments and in determining which monuments will be allowed to use thatlimited resource. Thus, for example, "Literary Walk" in New York City's Central Parkhas only four monuments, honoring respectively Shakespeare, Robert Bums, Sir WalterScott, and the now-forgotten Fitz-Greene Halleck. Central Park's monuments to artisticachievement are not limited to English literature; the park also is home to monumentsto Schiller, Duke Ellington, and Beethoven, among others.' 59

One more feature of this pervasive practice of honoring creative excellence isworth noting: Even when honors are bestowed upon, and monuments raised to, aperson rather than a specific work or deed, it is the excellence of that person's creationsor actions that is really being honored. In some cases, of course, the primary focus onthe creation rather than on the creator is obvious. For example, in the world of film,Oscars are given for categories such as "Best Picture" and "Best Sound Editing." Evencategories such as "Best Actress" or "Best Director," which might at first glance seemto depart from this practice, are really consistent with it, since the award is given for aspecific performance by that actor or actress. An actress who turns in a lackadaisicaland by-the-numbers performance in a given film is unlikely to win an Oscar for thatrole, even if she happened to have the most talent of any person who appeared in filmsthat year, just as a bad book by an otherwise good novelist is unlikely to win thePulitzer Prize for Fiction. Similarly, our judgments that Vergil or Shakespeare weregreat writers are wholly dependent on judgments about the greatness of the works thatthey produced. Indeed, in Shakespeare's case almost nothing is known about himoutside of his works, and debate continues to this day about who "Shakespeare" evenwas. 6 ° Thus, although respect for an artist's creative excellence and respect for thecreative excellence of that artist's works are often intertwined, it is the latter that reallyaccounts for our behavior in both cases, whereas the former is merely derivative from

yout/reference/twocolumn table/PresidentialMedal ofFreedom Recipients.htm (last visited Nov. 14,2011). The recipients in 2010 included poet Maya Angelou, painter Jasper Johns, and cellist Yo-Yo Ma. KoriSchulman. Announcing the 2010 Medal of Freedom Recipients, THE WHITE HOUSE BLOG (Nov. 17, 2010, 4:07PM), http://www.whitehouse.gov/blog/2010/11/17/announcing-20 I 0-medal-freedom-recipients.

158. About the Position of Poet Laureate, LIBRARY OF CONGRESS, http://www.loc.gov/poetry/aboutlaur

eate.html (last visited Nov. 14, 2011). Forty-three states and the District of Columbia also designate their ownpoets laureate. Current State Poets Laureate, LIBRARY OF CONGRESS, http://www.loc.gov/rr/main/poets/curren

t.html (last visited Nov. 14, 2011). Indiana actually has two poets laureate, although one is only "unofficial"and bears the title "Premier Poet." Indiana - State Poet Laureate, LIBRARY OF CONGRESS, http://www.loc.gov/

rr/main/poets/indiana.html (last visited Nov. 14, 2011).

159. The Complete Listing of Central Park Attractions, CENT. PARK, http://www.centralpark2000.com/

database/database_home.html (last visited Nov. 14, 2011). For a detailed study of New York City's plethora ofpublic monuments, see DONALD MARTIN REYNOLDS, MONUMENTS AND MASTERPIECES: HISTORIES AND

VIEWS OF PUBLIC SCULPTURE IN NEW YORK CITY (2d ed. 1997).

160. See, e.g., Jess Bravin, Justice Stevens Renders an Opinion on Who Wrote Shakespeare's Plays,WALL ST. J., Apr. 18, 2009, at Al (briefly summarizing the history of the debate over authorship ofShakespeare's plays and discussing Justice John Paul Stevens's belief that the true author was Edward de

Vere).

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the latter. The principal object of honor and respect is the excellence of the artist'sworks.

In light of the prominent roles that public manifestations of respect for excellenceplay in American cultural practices, it would be remarkable if such attitudes bore norelation to laws that regulate interaction with the works of artistic creators. MoralRights law's reflecting a concern about moral duties of respect for artworks' creativeexcellence would therefore be of a piece with a wide range of society's beliefsregarding respect for excellence in human endeavor. It is thus unsurprising that a theorybased on a duty of respect for artworks' creative excellence can provide a plausibleanalysis of the central provisions that we actually observe in American Moral Rightslaws. To see that this theory can succeed where the other theories we have discussedhave failed, let us now reconsider each of those central provisions in turn.

B. Respect for Excellence in American Moral Rights Laws

1. Waiver and Transfer

First, we can see that the theory makes sense of the right of integrity's beingwaivable but not transferable. Many artworks lack much creative excellence, and manychanges are not disrespectful to whatever excellence a work does possess. Sometimes,therefore, suspending the right to prevent changes makes sense. The two dangers, ofcourse, are in over-restriction and under-restriction-in making a rule so strict thatchange is prohibited even when disrespect for a work's creative excellence is not atstake, or too freely allowing alterations when disrespect for creative excellence is atstake. What is needed, therefore, is a custodian who will most effectively make thosedecisions.

Because artists necessarily stand in a unique relation to the works that they havecreated-non-creators are (at most) only consumers of those works--creators are thepeople who are most likely to be aware of their works' creative excellence, if for noother reason than that they have spent more time with them, and more time intenselyengaged with them, than anyone else has. Artists are, of course, not infallible whenjudging their own works, and sometimes an outside observer may have a more accurateassessment than the artist himself or herself does of where, if anywhere, a work'sexcellence lies. However, for the reasons just noted, it is unlikely that some otheridentifiable group of persons would, on average, make better judgments than the artiststhemselves would.' 6 1 In particular, it seems unlikely that art collectors in general, aclass distinguished in large part merely by their possessing enough money to be able topurchase original artworks, would better appreciate an artwork's creative excellencethan the work's own creator would. At the same time, the artist is also well situated tounderstand when a work is such that alterations would not manifest significant

161. Fans of the Star Wars motion pictures have for years been frustrated by creator George Lucas'sattempts to "improve" the original versions of those films. See, e.g., James Mottram, Star Wars-When theFans Hit the Sith, INDEP. (London), July 9, 2010, at 12. Such fans would strongly deny that Lucas'sassessment of the original versions' excellence is better than theirs. However, the popularity of DVD"Director's Cut" versions of previously released motion pictures suggests that, even in the realm of film, the

Lucas situation is an aberration.

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disrespect for the work's creative excellence or when specific alterations are such thatthey would not be disrespectful. Therefore, from a perspective of trying to ensure thatall and only disrespectful changes are prohibited, allowing artists to choose whether towaive the right of integrity makes sense.

Moreover, the statutes' prohibiting transfer of the right makes equal sense,because third parties necessarily lack the special relationship that exists between anartist and the artist's work, the relationship which provides confidence that the legalright-holder's decisions about disrespect are most likely (on average) to be optimal.There is no particular reason to trust the relevant judgments of this other person anymore than the judgments of the artwork's current owner, against whom the right wouldbe enforced. And there is no evident moral reason why these third parties, whocontributed no share of the creative excellence in the work, would have any claim to aspecial Moral Rights in that work.

2. Destruction

At first glance, the fact that most statutes permit owners to destroy artworks mightseem to pose a challenge to this account, since destroying an artwork seems, at leastpotentially, quite disrespectful. 16 2 The key to understanding why such permissionmakes sense is because the respect owed in this account is not respect for the artwork,or even respect for the artist, but rather respect for the artwork's creative excellence.Thus, destruction is allowed because normally an owner would be interested indestroying a work only if he or she found little or no value in it and no one else dideither (therefore making it impossible for the owner to sell the work). 63 In such cases,the amount of creative excellence involved in the given work is likely to be zero, orclose to zero. Destruction of such works cannot be disrespectful to the artwork'screative excellence because there is no creative excellence involved to respect.

This account fits especially neatly with provisions, such as in VARA, givingartists the right to prevent destruction only of works of "recognized stature." 164 Most

Moral Rights statutes apply only to works of recognized quality, which now makessense, since failing to satisfy the recognized quality standard plausibly indicates thatthere is little creative excellence involved in the work, and thus little or no risk that anowner's altering or destroying that particular work would fail to fulfill the duty ofrespect for artworks' creative excellence.165

3. Public Display, Reputation, and Termination

The respect-for-excellence theory also makes sense of those statutes that giveartists the right, not to prohibit alterations in general, but only to prohibit public displayof altered works when damage to the artist's reputation is reasonably likely to result.Even when altering an artwork is disrespectful, or when altering it in certain ways is

162. See supra Part I1.A.2 for a discussion of how the statutes treat destruction.

163. Cf Hansmann & Santilli, supra note 3, at 111-12 (noting the economic incentives for owners not todestroy works that could be sold for more than the cost of preserving the work until sale).

164. 17 U.S.C. § 106A(a)(3)(B) (2006).165. See supra Part Il.A.3 for a discussion of the recognized-stature requirement.

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disrespectful, the amount of disrespect involved and expressed is vastly greater when

the altered work is displayed in public than when the altered work is secluded in a

private collection, just as cursing someone under one's breath is markedly less

disrespectful than cursing them loudly in public. Thus the public display clause may

reasonably reflect a concern that the law step in only when the disrespect involved is

sufficiently large.166

The limitation to alterations that carry a reasonably high risk of harm to the

artist's reputation also makes sense as a useful proxy for changes that would be

disrespectful. Changes that enhance or have no effect on an artist's reputation are

unlikely to be disrespectful-for the same reason that praise is much less likely to be

disrespectful than insults are-and the law is much more familiar with assessing

reputations and effects on reputations than it is with assessing expressions of respect. 167

4. Termination

Almost all of the Moral Rights statutes provide for the right of integrity to

continue even after the artists' death. 16 8 Five of the statutes have the right terminate

fifty years after the artist's death, whereas six of the statutes make the right effectively

perpetual. 169

The post-mortem survival of these Moral Rights becomes comprehensible when

we consider the implications of the fact that the respect-for-excellence theory is based

fundamentally on duties rather than on rights. Loosely speaking, our account derives

rights from the existence of duties, rather than deriving duties from the existence of

rights. This approach is distinctive. All of the other theories that we have discussed

have started by identifying some interests to be protected-the monetary interests of art

collectors, the personality interests of artists, the interests of the public in cultural

166. The respect-based theory's ability to justify prohibitions on public display of altered artworks mightraise questions about the theory's compatibility with First Amendment principles of free expression. (Henry E.Smith brought this issue to my attention.) Examining the constitutional dimension of the issues brought to lightby this Article's account of Moral Rights laws is itself a substantial project, and thus necessarily lies outsidethe scope of our discussion here. That dimension may well, however, provide a fertile ground for futureresearch. One question worth considering is whether the normative implications of respect-based theory are

especially well suited to account for prohibitions on restriction of expression, straightforwardly explainingthose prohibitions as arising (at least in part) from a duty to respect other people's opinions, creativity, andexpressive capacities.

167. Assessing reputations and effects on reputation is, of course, a central consideration in defamationlaw. For a discussion of defamation law as providing a quasi-right of attribution, see KWALL, supra note 11, at33.

168. VARA, the federal statute, is the one exception. It may not be a coincidence that this particular

VARA provision has a peculiar legislative history, as Cambra Stem noted:

ITihe original federal moral rights bills (which ultimately became VARA) in both the House andSenate extended the grant of moral rights for the life of the artist plus fifty years. Just before VARAwas passed as part of the Judicial Improvements Act of 1990, a massive amendment (whichincluded mainly provisions relating to federal judgeships) changed the duration provision to only

the life of the artist. Apparently, this change was at the urging of one of the members of the SenateJudiciary Committee.

Stem, supra note 7, at 867 (footnotes omitted).

169. See supra Part Il.A.5 for a discussion of these statutes' features.

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preservation, and so forth-and then finished with a grant of "Moral Rights" to artiststo protect those interests. 170 In those approaches, the duties that people have to act incertain ways with regard to artworks and artists were merely derivative from theexistence of these interests and these rights. It was the interests and the rights that werereally doing all the explanatory work.

Although this way of proceeding comes naturally to contemporary theorists, it isnot the only possible way. The respect-for-excellence theory starts instead byidentifying duties that people have and then attributing rights to other people asderivative from the existence of these duties. Here it is the duties (specifically, duties ofrespect) that really do the explanatory work. 171

In some cases, whether we say that rights are derivative from duties andresponsibilities or that duties are derivative from rights and interests may make littledifference, and in those cases arguing that one approach is correct but the other iswrong is probably fruitless. Sometimes, however, the choice makes a significantdifference. For example, starting from duties and responsibilities can more easilyexplain some constraints that exist against desecrating tombs or other acts of disrespectto the dead, who no longer exist to have either interests or rights, and likewise maymore readily explain moral constraints on actions that can affect people in futuregenerations, who do not yet exist and thus cannot now have interests or rights. 72

By taking duties and responsibilities to be primary, and the right of integrity to bederived from them, we see that even though an artwork's creator may no longer existafter his or her death, the duty-holder (i.e., the artwork's owner) certainly does continueto exist, and as noted earlier, the death of the artist does not prevent subsequent acts

170. For an uncommonly explicit discussion of this underlying analytical framework, see Beitz, supranote 17, at 338 ("For in controversial cases, the claim that a particular legal right is required to protect someunderlying moral right is likely to elicit further questions-e.g., why the moral right should be acknowledgedat all, why the values it advances should be accorded precedence over competing concerns of others, or why itshould be construed in whatever way is required to justify its enactment into law. It is hard to see how elsethese questions could be replied to informatively other than by considering the nature and significance of thefull range of interests affected."). Note that Beitz here is assuming the correctness of one common but notuniversal way of approaching moral questions. Kantians, for example, would likely have serious reservationsabout Beitz's characterization of how we must analyze controversial cases.

171. Oliver Wendell Holmes, Jr. endorsed a similar analytical approach. OLIVER WENDELL HOLMES,JR., THE COMMON LAW 219-20 (photo. reprint 2005) (1881) ("Legal duties are logically antecedent to legalrights.... To put it more broadly, and avoid the word duty, which is open to objection, the direct working ofthe law is to limit freedom of action or choice on the part of a greater or less number of persons in certainspecified ways; while the power of removing or enforcing this limitation which is generally confided to certainother private persons, or, in other words, a right corresponding to the burden, is not a necessary or universalcorrelative."). Additionally, Joseph Raz's Right-Based Moralities stressed the independence of duties andrights: "The possibility that there are duties which do not correspond to any rights is allowed for by thedefinition of rights and is generally acknowledged by legal and political theorists." Raz, supra note 134, at195. As discussed earlier, one of Raz's examples deals specifically with art but perplexingly asserts that theowner of a painting simultaneously has both a right to destroy that painting and yet also a duty to preserve it.See supra note 134 and accompanying text for Raz's example. Unfortunately, Raz offers no furtherexplanation of that conjunction of assertions.

172. For a recent survey of debates about various possible examples of legal duties that exist withoutcorrelative rights-holders--examples including criminal law duties, civic duties, duties to comply withregulations, and duties to non-sentient entities-and also for an argument that "preconception torts" constituteanother example, see Ronen Perry, Correlativity, 29 LAW & PHIL. 537 (2009).

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from being disrespectful to an artwork's creative excellence. Thus, the existence of

post-mortem protections makes sense.

5. Varying Lengths of Postmortem Restriction

One may wonder whether it is also possible to account for the differing lengths of

post-mortem protection. Recall that in some states the right terminates fifty years after

the artist's death, yet in other states the right is effectively perpetual. 7 3 On the respect-

for-excellence theory proposed here, the existence of such a disagreement is indeed

unsurprising. The key to understanding why is to note that the amount of disrespect

shown by an act depends upon the cost of doing otherwise-that is, upon the costs that

are incurred by not doing the act in question. For example, hanging up a phone in the

middle of a conversation or walking on a country's national flag is ordinarily

disrespectful, but much less so (or not at all) if doing so is necessary to arrive at an

emergency exit ahead of a fast-moving fire. The disrespectfulness of an act is mitigated

or eliminated if the only alternative to committing that act is perishing in an inferno.

Therefore, less extreme costs might not wholly eliminate the disrespectfulness of an act

but might nevertheless sharply decrease that disrespectfulness.

Now note that the cumulative cost imposed on society by prohibiting desired

alterations of artworks increases over time. t 74 As the length of time during which

alterations are prohibited expands, more instances of desired alteration are thwarted.

Loosely speaking, a perpetual prohibition on alteration will burden more people than a

prohibition that ends fifty years after the artist's death will, and the latter prohibition

will impose more of a burden than a prohibition that ends on or before an artist's death

will. Thus, the social cost of these restrictions will increase as the duration of the

restrictions increases, and the question becomes at what point, if ever, the cost becomes

so high that avoiding that cost ceases to be disrespectful. Such a question is, of course,

impossible to answer a priori, so it is not surprising that the law in different

jurisdictions would reflect different answers to that question. In some states, the law's

answer is fifty years after the artist's death; in other states the answer is never. 75

In sum then, we have now seen that the respect-for-excellence theory offers a

compelling explanation for the observed features of Moral Rights statutes in American

law. It has an intrinsic intuitive appeal, coheres with deeply rooted American cultural

173. See supra Part II.A.5 for a discussion of post-mortem protection.174. This is essentially an instance of the well-known "problem of dead-hand control," familiar from

many areas of the law. See, e.g., John H. Langbein, Burn the Rembrandt? Trust Law's Limits on the Settlor'sPower to Direct Investments, 90 B.U. L. REV. 375 (2010) (discussing the problem in the trusts and estatescontext); Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 COLuM. L. REV.606 (2008) (discussing the problem in the context of constitutional interpretation).

175. That many states settled on fifty years as the appropriate postmortem length rather than on a widervariety of numbers of years may reflect legislators' having looked to the copyright law of the time forinspiration in the absence of any obvious single right answer to the question of how long Moral Rightsprotection should extend. Between the Copyright Act's revision in 1976 and the Sonny Bono Copyright TermExtension Act in 1998, the period of time during which these Moral Rights statutes were enacted, the term ofcopyright protection for newly created works was life of the author plus fifty years. See Sonny Bono CopyrightTerm Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended at 17 U.S.C. § 302)(increasing copyright protection from life plus fifty years to life plus seventy years).

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practices, and fits the contours of existing statutes better than its rivals do. Beforeconcluding, however, we should address one remaining question: Why do these statuteslimit their protections to visual art?

VII. WHY LIMITED TO VISUAL ARTS: UNAVAILABILITY OF IDENTICAL

DUPLICATES AFTER ALTERATION

The theories that we have been discussing, including the respect-for-excellencetheory, make general claims that would apply to many areas of creative endeavor, notjust to visual arts. This fact naturally raises the question of why VARA and the stateMoral Rights statutes confer a right of integrity only to works of visual art. 176

We can answer that question by first noting a distinctive feature of original visualartworks, namely the unavailability of identical duplicates if the original is altered.When perfectly identical duplicates of the original exist-that is, when there are inessence multiple "originals"--then alterations to one instance of the work have limitedeffect. In a sense, those changes are reversible or irrelevant, since people who wish tohave access to the intact original can still have that access; an "original" continues toexist in its original form even after the alteration. (Note that many Moral Rightsstatutes explicitly do not cover mass-produced artworks, which VARA defines as workswith a run of more than 200 instances, 177 and which the relevant state statues typicallydefine as works with a run of more than 300 instances. 178) In such circumstances, it isplausible to think that altering an instance of an artist's work expresses little or nodisrespect to the artwork's creative excellence, since the alteration does not eliminatethe pure expression of that excellence, which remains in the intact original.179

The relevance of the existence of an intact original becomes evident when weobserve that it enables us accurately to predict which types of creative works the lawwill protect with a right of integrity, and which types it will not. 80 To see this, let usconsider some examples.

176. For Hansmann and Santilli, this limitation is a natural consequence of their assertion that the

monetary value of visual art is unusually dependent upon the reputation of the artist who made that art.Hansmann & Santilli, supra note 3, at 108-09. Since, in their view, the rationale for Moral Rights laws is the

protection of market value from negative externalities caused by a decline in that reputation, limiting Moral

Rights protections to visual art is understandable: visual art receives special legal attention because its marketvalue is especially vulnerable to such externalities. However, if Hansmann and Santilli's reputational

externalities account is (as this Article has argued) incorrect in general, then this specific application of their

framework cannot be the answer we seek.

177. 17 U.S.C. § 101 (2006) (defining "work of visual art").

178. See, e.g., ME. REV. STAT. ANN. tit. 27, § 303.1.D (2011); N.Y. ARTS & CULT. AFF. LAW

§ 14.03(1) (McKinney 2011).

179. In fact, whether perfectly identical duplicate versions of the original exist should be a relevantconsideration for many of the theories that we have discussed. For example, if an intact original exists, then anartist who wishes to vindicate his or her reputation after a purchaser has altered an instance of a given work

can continue to do so by referring to the still-extant other versions. Such alterations also raise only limited

preservation concerns and arguably have minimal effect on the artist's personality.

180. This criterion might also provide an additional explanation of why inferior visual art-art whichfails to achieve recognized stature--often does not receive Moral Rights protection under these statutes:Perhaps inferior visual art is so lacking in originality that, for practical purposes, it is largely interchangeable

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Paintings and sculptures can be reproduced after a fashion, but the technology toproduce identical duplicates does not exist; and even if it did, the existence of only one

original entails that if no one happened to make a copy before the purchaser made an

alteration, the original would be lost forever. Hence, we would expect to find a right ofintegrity granted here, and we do.181

Music is either wholly evanescent, because it was an unrecorded live

performance, in which case intellectual property issues are irrelevant, or recorded, inwhich case the relevant artwork is the recording. Because it is possible to make

multiple copies identical in quality to an original recording, we would expect the lawnot to give a right of integrity to musicians, and it does not.18 2 Likewise, creators ofwritten works, including books and musical compositions, also predictably do notreceive a right of integrity, since identical reproduction of the texts and scores is easyand common.

Likewise with inventors, since the invention itself is an idea, which is imperviousto alteration-any "changes" really just produce a different idea-and since identicalduplicates of physical instances of the invention are possible. Indeed, since the adventof mass-production, inventions with any hope of success necessarily must be amenableto the creation of multiple, identical copies. Thus the lack of a right of integrity forinventors is also unsurprising.

Motion pictures are an interestingly complicated case. VARA, and several statestatutes, explicitly exclude motion pictures from their grant of Moral Rights. 8 3 Sincemultiple, identical prints are made from the original master film, this exclusion is not asurprise. However, there was at one time considerable debate over legal prohibition ofthe colorization of motion pictures, a legal regulation that would amount to a verynarrow right of integrity. 184 At first glance, the fact that such regulation seemedplausible might appear to be an exception to the relevance of the identical-duplicatetest. In fact, however, it is yet another illustration of its relevance, since at the time ofthat debate access to motion pictures, especially old motion pictures, was possible only

with the great mass of other inferior visual art in existence. The availability of an intact original matters little

when the work itself lacks originality.

181. It may not have been a coincidence that, in remarks commending passage of VARA, Senator

Edward Kennedy declared that "[v]isual artists create unique works. If those works are mutilated or destroyed,

they are irreplaceable." 136 CONG. REC. S17, 574 (daily ed. Oct. 27, 1990) (statement of Sen. Edward

Kennedy).

182. Copyright law, of course, does give copyright holders in musical performances control over

economic exploitation of "derivative works," see 17 U.S.C. § 103(a), but that is quite different from a non-

transferable Moral Right to prevent alterations altogether.

183. Id. § 101 (defining "work of visual art"); LA. REV. STAT. ANN. § 51:2152(7) (West 2010); ME.

REV. STAT. ANN. tit. 27, § 303.1.D; N.J. STAT. ANN. § 2A:24A-3(e) (West 2011); N.Y. ARTS & CULT.AFF. LAW § 14.03(1); R.I. GEN. LAWS ANN. § 5-62-2(20) (West 2010). Other statutes may exclude motion

pictures by implication, by not including them in the list of artworks to which the statute does apply. However,

two states-Massachusetts and New Mexico-explicitly include motion pictures ("film") among the artworks

covered by their Moral Rights statutes. MASS. GEN. LAWS ANN. ch. 231, § 85S(b) (West 2011); N.M. STAT.

ANN. § 13-4B-2(B) (West 2011).

184. See, e.g., Richard Corliss, Raiders of the Lost Art, TIME, Oct. 20, 1986, at 98; William H. Honan,

Federal Report Criticizes the Coloring of Films, N.Y. TIMES, Mar. 16, 1989, at C22; Irvin Molotsky, Council

Opposes Coloring OldFilms, N.Y. TIMES, Nov. 4, 1986, at C13.

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through a very small number of channels. Thus, it was reasonable to worry that thealtered, colorized motion pictures would displace the original versions in thosechannels, making the latter, in effect, inaccessible. "85 If such a displacement did occur,then, for practical purposes, identical duplicates of the original film would not still beavailable after colorization, and Moral Rights protection could be appropriate.

The debate over film colorization usefully demonstrates that it is not only theexistence of a perfectly intact original that matters, but also the availability of thatoriginal to those who wish to see it instead of an altered copy. Availability itself has atleast two distinct elements. The first is accessibility, that is, the extent to which it ispossible for someone who wishes to see the intact original to do so. As the growth ofglobal computer network connectivity continues to expand the distribution channelsavailable for creative works and to provide online repositories that archive older works,we may expect to see accessibility of identical duplicates of digital (or digitizable)works continue to increase. 186 And with that increase, we may also expect to see acorresponding increase in resistance to providing Moral Rights of integrity for suchworks.

The same would hold true if the reason for the inaccessibility is the voluntarychoice of the work's creator. For example, the owner of the rights to a film can choosewhether or not to make the film publicly accessible, and the particular format in whichit is accessible)87 Because, in general, intellectual property law favors increasing the

185. The founder of the American Film Institute raised such a concern: "Classic films are going to be

principally accessible over television and in video cassette. People can't go to the archive and see the original

print. They'll see the film the way it's marketed, so therefore the films will be essentially inaccessible in blackand white." Leslie Bennetts, "Colorizing" Film Classics: A Boon or a Bane?, N.Y. TIMES, Aug. 5, 1986, atAl. Others shared that worry. See, e.g., Vincent Canby, 'Colorization' Is Defacing Black and White Film

Classics, N.Y. TIMES, Nov. 2, 1986, § 2, at I ("The 'colorization' proponents also argue that, even thoughtinted tape versions are made, the original black-and-white films will continue to exist, available for viewingby people who make the effort to find them. However, should the tinted versions catch on, the preservation ofthe black-and-white originals will certainly become even more difficult than it is today."); Stephen Farber, TheMan Hollywood Loves to Hate: Film Buffs Don't Want the Classics Colorized, but Frankly, Ted TurnerDoesn't Give a Damn, L.A. TIMES, Apr. 30, 1989, Magazine, at 9 (quoting director Joe Dante: "The argumentthat the original black-and-white negative still exists in a vault somewhere is nonsense .... How many people

are going to go to the Library of Congress to see the negative or have several hundred dollars to pay for a newprint to be struck in black and white? There are no revival theaters anymore, so there's no way for most people

to see those movies the way they were meant to be seen.").

Further evidence for the centrality of the concern about access to unmodified originals, and perhaps anexplanation of why a general prohibition against colorization never passed, was the defense of colorizationoffered by a sales executive for a company that hoped to profit from colorization: "We're not destroying theblack-and-white print .... The classic picture lives on. If you turn the [television's] color knob off, you'll seeit in perfect black and white. The option is there for anyone who doesn't appreciate the color version to see itin black and white." Bennetts, supra.

186. Advancing computer technology has had effects not only on the accessibility of identical originals,but also on their very existence. To the extent that visual art today is increasingly made digitally, on computersrather than in natural media, the appropriateness of protecting such works with rights of integrity may be open

to debate, since the creation of perfectly identical duplicates of digital works is trivially easy.

187. Famously, George Lucas refused to release the original, "Han shoots first," version of Star Wars on

DVD until 2006, and then made the release available only for a few months, on the grounds that he viewed hislater revised versions as the definitive versions. Douglas Hyde, Five Major Changes in the 'Star Wars'DVD,

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availability of creative works rather than decreasing it, artists' attempts to enhance theirclaims for Moral Rights protection in works by choosing to limit access to those worksis unlikely to have much appeal. The inaccessibility of intact originals or identicalduplicates might plausibly underwrite a claim for Moral Rights protections only to theextent that the inaccessibility is not a consequence of the voluntary actions of the partyclaiming the benefit of such protections.

The second element of availability is discernibility, that is, the extent to whichsomeone who interacts with an altered copy of the original is readily able to discernthat the copy is not in fact the intact original, and thus is provided with an opportunityto choose whether to seek out the intact original. If the public is unaware that an alteredcopy is not in fact the original, or is unaware that that an intact original exists, theexistence of that original will have little practical significance.

The importance of discernibility highlights the central significance of artists'having a right of attribution-and arguably a non-waivable right of attribution-so thataccurate identification of originals and of altered copies is readily possible. VARA andthe state Moral Rights laws provide only limited guarantees of accurate attribution.Other areas of the law-such as trademark law-may at least partially fill this gap. Forexample, in Gilliam v. American Broadcasting Companies, Inc.,188 the Second Circuitupheld a preliminary injunction against the ABC television network's broadcast ofaltered versions of sketches by the comedy troupe Monty Python, in part on thegrounds that "an allegation that a defendant has presented to the public a 'garbled,'distorted version of plaintiffs work seeks to redress the very rights sought to beprotected by the Lanham Act, and should be recognized as stating a cause of actionunder that statute."' 189 However, the United States Supreme Court's subsequentdecision in Dastar Corp. v. Twentieth Century Fox Film Corp. 190 has been read to limitexpansive use of the Lanham Act to approximate a right of attribution, 19' and recentacademic critics have argued that the patchwork of United States legal prohibitions thatfunctionally approximate a right of attribution are inadequate. 192 Therefore, to theextent that one takes current American Moral Rights law, overall, to be normativelywell-founded, the significance of discernibility in the identical duplicates test mayprovide a reason to favor expanding American law's provision of Moral Rights ofattribution. 193

CNN (Sept. 23, 2004), http://www.cnn.com/2004/SHOWBIZ/Movies/09/20/star.changes/index.html; MikeSnider, 'Star Wars' Goes Back to Basics, USA TODAY, May 4, 2006, at ID.

188. 538 F.2d 14 (2d Cir. 1976).189. Gilliam, 538 F.2d at 24-25 (citations omitted).190. 539 U.S. 23 (2003).191. Dastar Corp., 539 U.S. at 37 (concluding that the phrase "origin of goods" in the Lanham Act

"refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea,concept, or communication embodied in those goods").

192. See KWALL, supra note 11, at 30-33; Ginsburg, supra note 11, at 281-82.193. A thorough evaluation of the implications of the identical-duplicates test for such proposals

necessarily lies outside the scope of this Article. It does, however, suggest a potentially fruitful direction forfuture research.

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VIII. CONCLUSION

"As Frank H. Knight has so often emphasized, problems of welfareeconomics must ultimately dissolve into a study of aesthetics and morals."

-Ronald Coase, The Problem of Social Cost19 4

This Article's discussion began by critically examining the two broad types ofexplanation that traditionally have been advanced to account for the existence andshape of Moral Rights laws in the United States. The economics-based account wouldassimilate these laws to the conventional economic characterization of Americanintellectual property law's analytic foundations. We saw, however, that such an accountwas inadequate, providing a poor fit for the actual provisions of American MoralRights statutes. And we noted that such a failure was not surprising, since economics ismost adept at dealing with instrumental value, but art's characteristic value iscommonly thought to be intrinsic.

Our discussion then worked systematically through the standard alternatives to theeconomic account: accounts based on protecting the artist's personality, accounts basedon expression of society's esteem for art, accounts based on concerns for thepreservation of art, and accounts based on protecting artists' subjective interests in theirreputations. Again, none proved able to meet the challenge of making sense of theMoral Rights laws that we actually observe.

This Article then took up that challenge by proposing an alternative theory, onebased not on economic incentives or rights of personality, but on duties of respect-specifically, duties of respect for artworks' creative excellence. We saw that thisaccount is consistent with broader American cultural practices concerning respect forexcellence and, moreover, succeeds in providing a coherent explanation for the mainprovisions that we in fact observe in American Moral Rights law, including itslimitation of a right of integrity to works of visual art.

If then, as this Article has argued, the respect-for-excellence account is the bestway to understand the underpinnings of Moral Rights laws in the United States, animportant further consequence follows: Contrary to traditional assumptions, purelyeconomics-based frameworks are not adequate to account fully for Americanintellectual property law. Although economic rationales may have an important role, sotoo do non-economic moral considerations. Whether the specific non-economic moralrationales that play a role in our intellectual property law are the rationales that shoulddo so is a question that, for the moment, remains open. But the conclusion that somemoral analysis is necessary for fully understanding our intellectual property laws is adirect consequence of our discussion. And this conclusion is not confined to the lawgoverning visual art. Visual artistry is just one form of creativity, not obviouslydifferent in kind from many other forms of creativity. Thus, if non-economic moralconsiderations help explain the law of visual art, it is likely that similar considerationsare at least implicitly at work throughout the American intellectual property system.Exploring this moral dimension of American intellectual property law, and critically

194. R.H. Coase, The Problem of Social Cost, 3 J.L. & EcON. 1, 43 (1960).

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evaluating its core principles and implications, are significant opportunities for futureresearch.

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